Ricerc@Sapienza

Especially over the last two decades, many countries of continental Europe have undergone fundamental reforms of the rules relating to the transmission of the surname to children under the pressure of the principles of equality between man and woman and non-disparity in treatment based on the type of filiation. This has led to the erosion of the widespread principle prescribing the automatic and invariable attribution to the descendants of the paternal surname and the resulting recognition of the possibility for them to be attributed the mother's surname.

This article investigates the scope and contents of CEDAW Art. 16, 1, g), which is the only provision within the international legal landscape to refer to the right to choose a family name. Originally, this provision was conceived by the drafters narrowly, to mean the freedom of the wife to keep her family (maiden) name in her personal and social life. The monitoring practice of the CmEDAW has subsequently widened the scope and contents of this provision, to cover the equal rights of the mother and of the father to pass their family name on their children.

This article advances a new model for family law to address emerging non-conventional family formations, particularly between parents and children. We contend that the conventional model of kinship categories as static, predefined statuses should be replaced with a model whereby the state accommodates kinship categories the law users themselves produce within their fluid and nomadic family assemblages and that they actively revise when negotiating state recognition. We claim that this model would better reflect and govern the emerging kinship system.