Lgbti Discrimination and Parent–Child Relationships: Cross‐Border Mobility of Rainbow Families in the European Union

• Author: Elena Falletti
• Date: 01 January 2014
• Published date: 01 January 2014
• DOI: http://doi.org/10.1111/fcre.12068

LGBTI DISCRIMINATION AND PARENT–CHILD RELATIONSHIPS:

CROSS-BORDER MOBILITY OF RAINBOW FAMILIES IN

THE EUROPEAN UNION

Elena Falletti

One of the most critical issues in the landscape of the member states of the European Union is the recognition in other countries

of the parent–child relationship within “rainbow” families. The parenthood of partners of same-sex couples is acknowledged

in Spain, Sweden, Denmark, Belgium, and the Netherlands. In other countries laws offer timid and partial protection against

discrimination of the children of same-sex couples. In the majority of countries, however, there is still no legislative provision

recognizing and protecting a child’s relationship with one of the partners of a same-sex relationship. This legal fragmentation

threatens freedom of movement within the European Union and challenges the principle of discrimination between children

only on the basis of the sexual orientation of the partners in the family. By scrutinizing the distortion of the framework of

fundamental rights as recognized within the European Union, and by raising the awarenessthat European citizenship includes

a new dimension of individuals’ protection, this article will investigate political and juridical issues in relation to the

implementation of children’s rights and mutual recognition between the states.

Keypoint

• The innovation of the approach offered in this article lies in the mutual recognition of the forms of protection and on

the study of the available case law at the European level. The analysis will be aimed to the fundamental protection of

children and to the enforcement of all the measures which are necessary for the full protection of the best interests of

the children.

Keywords: Cross-BorderMobility;European Court of Justice;European Union;Nondiscrimination;Same-Sex Families;and

Same-Sex Parenthood.

INTRODUCTION: WHAT IS THE PROBLEM?

One of the fundamental principles guaranteed by the European Union system is the freedom of

movement of persons and their families within its borders. Among them are individuals involved

in a same-sex relationship who are raising children. However, each Member State could recognize

different levels of legal protection to rainbowfamilies, and this circumstance could affect the effective

application of the principle of freedom of movement.

An example of what could happen to families of people of the same sex was reported at the

beginning of August 2012 in the Turin pages of one of the most important Italian newspapers: A

couple of lesbian mothers, one Italian and one Spanish, regularly married in Spain according to the

Spanish Law, applied for registration of their son at the registry off‌ice of the town.1The child was born

through a process of in vitro fertilization with a sperm donor and the fertilized egg had been donated

by the Italian woman, while the Spanish one had given birth to the child. Italian law forbids such

techniques of assisted reproductive technology as heterologous fertilization, but there is an additional

problem: the child is the son of two mothers, the one that gave birth to him naturally, according to the

traditional rule “mater semper certa est”, and the one that donated the fertilized egg.

The municipality of Turin refused the inscription of that child on the basis of two reasons. First of

all, the heterologous fertilization is not allowedin the Italian system. Secondly, the Italian law does not

recognize either same sex marriage celebrated abroad, or any kind of parent-child relationship

founded on same-sex parenthood. Therefore, that child is not eligible for Italian citizenship from his

Correspondence: efalletti@liuc.it

FAMILY COURT REVIEW, Vol. 52 No. 1, January 2014 28–45

© 2014 Association of Familyand Conciliation Cour ts

biological mother. It seems that this child does not existboth for the municipal administration of Turin

and for the Italian legal system, on behalf of which the off‌ice of the public prosecutor delivered the

negative legal advice to the register off‌ice2. However, complying with the European Union, Italian

institutions should not refuse this kind of inscription, as Italy is a member both of the Council of

Europe, which grants a minimum level of human rights in Europe, and of the European Union, which

includes among its founding principles the right of free movement within the Member States for

European citizens and their families.

However, a similar situation could have happened in a very large part of the European Union, as

of the 28 EU Member States, 15 (Bulgaria, Cyprus, Czech Republic, Estonia, Greece, Hungary,

Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Romania, Slovakia) have no explicit

provision on access to in vitro fertilization techniques and on joint or second parent adoption for

same-sex couples. In fact, only Belgium, Denmark, the Netherlands, Spain, Sweden and the United

Kingdom would allow homosexual parents to access all three ways of recognition of a parent-child

relationship. Finland recognizes access to in vitro fertilization and the second parent adoption, while

Austria, Germany, and Portugal allow only the last one3, and adoption for same-sex couples has been

admitted in France after the reform of Spring 2013.4Instead altruistic surrogacy is regulated in

Greece5, Netherland6, Belgium and in the United Kingdom.7In Croatia, the latest EU Member State

from July 1, 2013, a constitutional referendum held on December 1, 2013 banned same-sex marriage

and adoption.8

The case law, both of the European Court of Human Rights and of some EU Member States9, has

elements of interest because it shows signif‌icant demands for the recognition of legal status to rainbow

families, and provides the answer for of the publicdebate on the recognition of parenthood for LGBTI

couples where no express provisions on this point exist, as it is happening with positive effects in

France, or about the indifference of the political world in Italy.

In this regard, this article aims to reconstruct how the key concepts in this subject, such as the

principle of non-discrimination, protection of the best interest of the child and family life, are

developing, especially through the judge of human rights in Europe, like the ECHR. It then discusses

the European Union legislation in the f‌ield of mobility of people and f‌inally it analyzes in detail the

known case law of the EU Member States on the issue of legal recognition of the relationship

(parent-child or adoption) between children and their parents with a homosexual orientation.

THE CREATION OF SHARED PRINCIPLES:WORK IN PROGRESS BETWEEN EU

LAW AND THE CASELAW OF ECtHR

Article 23 of the International Covenant on Civil and Political Rights10 protects the “right of men

and women of marriageable age to marry and to found a family.” Do individuals of homosexual

orientation (lesbian, gay) or transgender people have the same right to be parents as everyone else?

Does a personal characteristic, such as sexual orientation or gender identity, inf‌luence the personal

ability to nurture a child?11

The expression “rainbow families” concerns family groups composed of LGBTI (lesbian, gay,

bisexual, transgender, intersexual) parents and their children. There are many kinds of them: the

relationship between adults and children could be established among a LGBTI couple through

adoption, single or joint, step-parenting or second parent adoption12, as well as assisted reproductive

technology and surrogacy. However, LGBTI parenthood is still perceived as a contradiction in terms

because gay and lesbian people have been historically portrayed as pedophiles, moral degene-

rated or criminals13, and nowadays the right of homosexuals and transgenders to raise a family is

controversial among both scholars and the public opinion. For instance, a survey carried out by

Eurobarometer in 2006 showed that only 32% of Europeans feel that homosexual couples should be

allowed to adopt children throughout the European Union.14 This perspective focuses on the recog-

nition of equal rights and dignity in family life to the LGBTI people. Indeed, discrimination based on

sexual orientation is forbidden by Article 21 of the Charter of Fundamental Rights of the European

Falletti/LGBTI DISCRIMINATIONAND PARENT–CHILD RELATIONSHIPS 29