Surname, Autonomy And Gender Equality:analyzing The Italian Court’s Judgement

Introduction

Family is the main pillar of patriarchy, a patriarchal unit within a patriarchal whole, it serves as a reflection of and a link to the greater society (1). The concept of surname is essential to the institution of family, as surname denotes and, in a way, carries forward the family name and in the Indian context, surname denotes the caste of the person and the family.

In May of 2022, The Italian Constitutional Court in a very important case held that the social practice of giving surnames of the father to children automatically after birth is discriminatory towards women. Italy is not the first country where such a practice has been criticized; many European countries like UK, France, and Germany have already made progress towards gender equality in this practice of giving surnames to children.

In this paper, I shall be arguing in favor of the judgment given by the Constitutional Court of Italy in light of the Nigerian author Chimamanda Ngozi Adichie’s Book Dear Ijeawele, or A Feminist Manifesto in Fifteen Suggestions.

The paper starts by introducing the concept of the ‘patriarchal dividend’ given by Australian sociologist R.W. Connell and how the recent judgment by the Italian Constitutional Court helps damage the patriarchal dividend.; The paper further discusses the implications of a judgment like this in the context of India using the Philosopher Immanuel Kant and Chimamanda’s book, Dear Ijeawele.

The Italian Case

The Italian Court examined the case of a family from the Southern city of Potenza, which had 3 children with different last names  Since the fir father did not recognize them at first, two of the children took on their mother’s last name, but the youngest, who was born after the couple had wed, was unable to receive the same surname as her siblings. One of the family’s solicitors, Giampaolo Brienza, stated, “For them, it was a matter of family identity.” The oldest sibling, who is 14 years old, could not suddenly change her last name. (2)

In a closed-door conference, the Constitutional Court of Italy sat down to consider the constitutionality of the laws governing how children in the Italian judicial system are given surnames. In particular, the Court made decisions about rules that prohibit parents from giving their son only the mother’s last name under a municipal agreement and regarding rules that mandate only the father’s last name where there is no agreement. The censored rules have been declared invalid due to conflicts with Articles 2, 3, and 117, First Paragraph, of the Constitution, the latter in relation to Articles 8 and 14 of the European Union of Human Rights Convention. (3) The Court viewed the automatic assignment of the child’s father’s surname as discriminatory and damaging to the child’s identity. The choice of the child’s surname, which is a crucial component of personal identification, must be made jointly by both parents in accordance with the equality principle and in the child’s best interests.

As a result, unless both parents agree to exclusively give the child one of their surnames, the rule is that the child will inherit both parents, last names in the order they were given. The judge’s participation is nevertheless permitted by the legal system in the absence of agreement on the surname attribution order for both parents.

The Patriarchal Dividend

In her book Dear Ijeawele, Chimamanda has given fifteen suggestions on how to raise a feminist daughter. In the third suggestion, she talks about how the idea of ‘gender roles’ is a completely nonsense social construct, because this social construct is discriminatory in nature. She argues that stereotypical practices are imposed on women just for the reason that they are women; for example, she talks about how in Nigerian popular culture, people believe that wives should cook for their husbands. Also, cooking is still seen as a marriageability test for women (4). The imposition of gender stereotypical roles on women but not men is just a micro-level part of a much larger issue at hand, known as ‘The patriarchal dividend’.

The concept of ‘The patriarchal dividend’ was given by R.W. Connell in her 2005 book Masculinities(5). Connell argues men are rewarded for participating in gender-specific orders, and these rewards include status, command, and material possessions. She further substantiates the argument by suggesting that there exists a conflict of interest in gender relations as it is a hierarchical structure that promotes inequality, where gender groups profit or lose in different ways by either changing or maintaining the structure. For men, this dividend is a kind of unearned social and professional capital that they acquire consciously or unconsciously (6). Chimamanda has pointed out many subtle practices in Dear Ijeawele that may work in the furtherance of the ‘patriarchal dividend’ in Connell’s perspective.

The practice of giving exclusively patrilineal surnames to children is also one such practice that contributes to the dividend and benefits men as a social group. Even women are forced to change their surname after marriage; this suggests that there is some form of cultural power linked to surnames(7). The decision by the Italian Constitutional Court is great damage to the dividend. The court has held that the traditional practice of giving only the father’s surname to children is discriminatory and harmful to the identity of the child. In Italy, families were not allowed to give the mother’s surname to children are certain cases where the fathers were not involved in the child’s life turned out mentally agonizing for both the mother and child (8) The judgment has taken authority from the Italian Constitution to declare the practice unconstitutional. But the question is what is the value of this judgment which impacts the social fabric of Italian society when used as a precedent in other cases? I intend to discuss this under the next heading of my project.

Progressive Precedents and Gender Equality

Since ancient times the tradition of giving the father’s surname to the child has been continued (9). Society has internalized the practice as there is no conversation in common households regarding the surname of children (10). The societal presumption that ‘no husband has to give up and change his surname’ is reinforced by the implicit assumption that children will only be given patrilineal surnames. This continuity in surname ensures the male privilege of maintaining a consistent identity and the social capital that goes along with it (11). When this practice of privileging fathers at the expense of mothers becomes the default choice of society, A phenomenon known as “genealogical amnesia” (12) occurs; This is the symbolic destruction of women and their family’s histories (13). Indian society is not alien to this phenomenon. While the phrase has broader interpretations in the Indian context (14) but can be used to understand the historic discrimination against the female gender in India. The institution of the family was created by, for, and with the help of males. In Indian society, women can join this institution, but they can never hold the position of a head member or make their own surname the family surname. Although this occurs frequently in most societies around the world, caste plays a very different role in Indian society. Because surnames in India have social implications and it is frequently the case in inter-caste weddings that the girl is from a caste that is oppressed and the male is from a caste that is oppressor, giving children their mother’s surname could result in discrimination against them in society. Again, this results in genealogical amnesia. The Italian court’s judgment declaring the practice unconstitutional is a welcoming decision, especially for future cases where the precedential value of this case can be used to get more progressive judgments.

Fredrick Schauer in his book Thinking Like a Lawyer argues that precedents following decisions are backward-looking in nature as in judgments given in the past when influencing the present, preventing the best for the present case from happening(15). Following a precedent is distinct from choosing the course of action that presently seems to have the best results. While precedents can bar the judiciary from raising moral and ethical questions about the case at hand but bind it to follow the authority, Schauer in his further interpretation of precedents expands on the authoritative nature of precedents(16). This aspect of precedential decision-making can be beneficial for society when cases like the one given by the Italian court will be used as precedents to acquire more decisions promoting gender equality.

This recent judgment by the Italian court is quite the opposite of what Chimamanda calls ‘feminism lite’. In her book, when Chimamanda expands on the fourth suggestion, she introduces a term called feminism lite (17). Chimamanda calls it conditional female equality; In feminism lite, men are automatically considered superior to women but men should show chivalry while treating women(18). The judgment by the Italian court is not what Chimamanda would call feminism lite. In light of Dear Ijeawele, it is a feminist judgment which considers the autonomy of both mother and father in giving surnames to the children. This compels us to ponder the question of where the child’s autonomy is. And this question takes us to the next part of the paper.

Surname and Child’s Autonomy

The concept of the surname in Italy is very different from India. In India, a surname denotes a person’s caste and family; caste is not a trivial matter in Indian society(19). Caste impacts every sphere of an individual’s life in the Indian social fabric; caste privileges one section of people while putting another set of people at a disadvantage(20). Indian society is riddled with caste-based discrimination. Caste is a very politically and socially debated issue in Indian society and due to that one cannot put a blind eye toward the issue of caste(21).

When we analyze the judgment by the Italian Court in the context of India, one cannot ignore the aspect that the Italian court has ruled that a child should be given the surname of both mother and father at birth. In my opinion, this can be very harmful to the identity of the child in a caste-ridden society like India; One cannot rule out the possibility that children with surnames of both parents might face discrimination from society because of one of their parent’s surnames.

I would like to argue here in favor of a child’s autonomy. Eighteenth-century English Philosopher Immanuel Kant describes autonomy as having authority over one’s actions (22). Kant connected the concept of self-government to morality by urging the will to determine its guiding principles instead of allowing our society and in this essay’s context, parents, to set them for us (23). Rather than being obedient to an externally imposed law or religious precept (heteronomy), one should be obedient to one’s self-imposed law (autonomy) (24). As surname is so important in an Indian individual’s life then why should we leave it to some other person to decide?

When a child is born, they shouldn’t be given either their father’s or mother’s surname. As the child grows up after a certain age, society gives them certain rights like the right to vote (25), the right to choose their marriage partner (26), and many other rights. The right to choose one’s surname after a certain age can also be considered in the Indian context if we take into account Kant’s definition of autonomy.

The idea of completely dropping surnames until a certain age as a way to reduce caste discrimination is indeed an interesting concept, but it requires further exploration to understand its practical implications. Implementing such a massive departure from established naming norms would undoubtedly face challenges and practical issues.

One practical consideration would be the administrative burden associated with implementing and managing a system where individuals do not have surnames until a certain age. Surnames play a crucial role in identification, record-keeping, and maintaining legal documentation. Without surnames, it may become more challenging to track individuals, maintain accurate records, and ensure efficient administrative processes. Therefore, it would be necessary to develop alternative identification systems or mechanisms to address these concerns.

Additionally, it would be important to consider the social and cultural implications of dropping surnames. Surnames often carry historical, cultural, and familial significance and can be an essential part of an individual’s identity. Removing surnames entirely may lead to a sense of loss or disconnection from one’s heritage and ancestry. It would be crucial to strike a balance between addressing caste discrimination and preserving cultural identities. 

Moreover, studying past movements in India that involved dropping surnames, such as the Dravidian movement, could provide insights into the socio-legal consequences of such initiatives.

During the Dravidian movement, dropping surnames had several implications. First, it aimed to eradicate the caste system by removing the markers of caste identity and promoting social equality. Second, it symbolized a rejection of Brahminical dominance and upper-caste privileges, asserting Dravidian identity and cultural pride. Third, it fostered social integration by emphasizing a shared Dravidian identity over divisive caste identities, promoting unity among people from different castes. Fourth, it strengthened the Dravidian linguistic and cultural identity, emphasizing regional heritage over caste affiliations. Finally, it challenged social norms by breaking away from traditional naming conventions and encouraging individuals to assert their individuality, rejecting societal expectations associated with surnames (27). Understanding the outcomes, challenges, and criticisms faced by those movements can help inform the potential impacts of a similar approach in the present context.

Chimamanda has pointed out in the ninth suggestion of Dear Ijeawele, giving children a sense of self-identity is very important (28). Autonomy can be considered as a derivative of self-identity in light of Kant. Furthermore, Chimamanda makes the argument in her eleventh suggestion that kids should question how their culture selectively uses biology to justify social norms (29) This suggestion can be applied in the context of the practice of giving a father’s surname to children, where the fact that men are responsible for the sex of the child is used to justify the practice of the father becoming the first parent of the child. Questioning these practices further adds to the self-identity and autonomy of the child.

Conclusion

The recent judgment by the Italian Court is a beacon of hope in the sea of judgments reinforcing patriarchy. Both Chimamanda and Connell would agree that this judgment is a feminist one because it does not privilege one gender over another. The judgment gives equal opportunity to both father and mother in the process of giving a surname to the child. In this process, the judgment does a great deal of damage to the patriarchal dividend.

Chimamanda, in her book Dear Ijeawele, has reiterated many times that the sense of self-identity is very important for children: an identity which stems out of one’s own roots, an identity that can only be acquired and can not be imposed, an identity that rejects the idea of likeability and an identity that question one’s own beliefs, prejudices and biases (30).

In the Indian context, Chimamanda’s idea of self-identity can manifest itself if complemented with Kant’s idea of autonomy. A child’s surname in India is just not a gender issue but a caste issue also. Letting the child choose from mother or father’s surname not only develops a sense of self-identity in the child but also damages the patriarchal dividend as the privileges that are passed through surnames from one generation of men to another will be halted to a great extent, but still, there is need for a lot of legal research about implications of implementing gender neutral family laws in India.