Thursday, 06 Jul 2023

Written by Martina Loreggian

            In Italy since 2016 there has been a civil partnership law that allows same sex couples to be recognized as families before the Italian state. This law aligns same sex relationships with straight marriages, with one important exception: a partner cannot adopt his or her  partner’s children. For many gay and lesbian parents this means that they are, from a legal point of view, strangers to their own children. They cannot make decisions for them, they are like ghosts to the children they feed, cuddle, play with, take care of every day of their life. Even worse, in the case, God forbid, that the biological parent should die, there is a high possibility of the child being entrusted to a grandparent or an aunt or an uncle, instead of his or her step-parent.


Given this situation many couples have sought official recognition from a local authority or court that takes decisions on a case-by case basis. Some of them have won their trials and the step-parent is now legally recorded. Often the child has taken a double surname, to mark the fact that both partners are, for all intents and purposes, parents. What has been happening in the last five months is that in this national regulatory vacuum, the new right wing government has started to question the validity of some of these recognitions. The mayor of Milan has been forbidden from recording the children of same sex couples as children of both partners. He has refused to obey and has said that the municipality of Milan will protect the rights of its citizens, particularly its minors, regardless. Less than two weeks ago, the equivalent of the Crown Prosecution Service in Padua decided to contest the validity of the acknowledgment, made by the municipality of Padua since 2017, of same sex families. This means that suddenly some of the children who were recognized six years ago, now have a new surname, their siblings are not legally their siblings anymore and one of the parents has lost all legal authority over them. This has triggered a huge protest in Italy, led by many lesbian women whose children have been born through artificial insemination abroad.


In this week’s parashah we read of the daughters of Zelofechad whose father died without leaving a male child. Mahlah, Noah, Hoglah, Milcah and Tirzah go before Moses, Eleazar the priest, the chieftains and the whole assembly of Israel and they ask justice for their father’s name, pleading to receive his inheritance, so that his property and name won’t be scattered and forgotten. Moses doesn’t know what to do, so he asks God to instruct him about what the law should be in this case. Not only does God decides in favour of Zelofechad’s daughters, recognizing their right to their father’s share, but He also gives to Moses and the people of Israel a general law about inheritance in case a father should die without sons. Property should go to his daughters and if he has no daughters, to his brothers, or to his father’s brothers or to his nearest male relative. To the modern eye this law is not the most satisfactory; female relatives are excluded, with the exception of the daughters. Nevertheless, through the agency of Zelofechad’s daughters, Israel has a new regulation, that can be changed and improved, and that guarantees not only Zelofechad daughters’ rights, but the right of inheritance for all the other daughters, in case there is no son who will take the share of their father.


Interestingly, after this episode, Joshua is appointed as the successor of Moses. A new leadership can be established. With this guarantee that if the daughters of Ploni should come before Joshua to have their share, he could not say to them: sorry, you cannot inherit. Or even worse, go to the daughters of Zelofechad and take their inheritance away from them. Even more interestingly, after Joshua has been appointed as the new leader of the people of Israel, the laws about the daily offerings are given again. This is how our amazing legal tradition works: some elements of continuity from generation to generation are brought together with the space for change and novelty. Legal systems don’t always fit our needs or ethical values. But they are necessary, and they can be changed. We can make them better, even if they will never be completely ethical, because law and ethics are not the same thing and because law often tries to balance between the different interests, values and needs of a people.


Basic needs and rights of minors are recognized in our societies as indisputable values. The convention on the Rights of the Child of the United Nation approved in 1989 states:


‘States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.’


It doesn’t matter what one might think of homosexuality, what makes a family, or same sex couples: children have a right to protection that cannot be denied or sacrificed in the name of other political battles. The regulatory vacuum in Italy and in all the other countries of the EU must be remedied. The good will of some mayors or judges is not enough, it is never enough actually. Only good enough legislation can work and free people from arbitrary powers and decisions.

Again, like in our parashah, women are taking agency, they are asking and fighting for their rights and the rights of their children. Once again, we will be grateful to a group of women if we find ourselves living in a better world, where hopefully justice will be done, not by God in this case, but by a parliament that is able to stand for the rights of its citizens, particularly its weakest. and littlest ones.


Martina Loreggian LBC rabbinic student

The views expressed in this D’var Torah do not necessarily reflect the position of Leo Baeck College.