Abstract
The chapter examines the impact of the transnational movement of same-sex families on private international law mechanisms at the national level. The chapter approaches this topic by using a fundamental right standard evaluation. Every time a same-sex family moves from a country to another, in fact, it triggers the protection of fundamental rights in terms of the right to respect of private and family life, the freedom of marriage and the protection of the children’s best interest. By investigating the extension of these rights, continuous references to case-law are made to support the existence of said standard.
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- 1.
Schalk & Kopf v. Austria, n. 30141/04, judgment of 24th June 2010, paras 27–30 (concluding that “[a]ccording to the information available to the Court, the vast majority of the [European] States concerned have introduced the relevant legislation in the last decade”). On same-sex couples under the ECHR see the chapters by Crisafulli and Pustorino in this volume.
- 2.
The expression ‘gay parenting’ is actually multifaceted. There are actually two macro-categories of gay parenting (1) the families composed by children and their parents who came out before or after breaking up with and divorcing from a different-sex spouse; (2) the families formed ab initio by same-sex parents and their children through joint adoption, medically assisted procreation or surrogate motherhood.
- 3.
Schalk & Kopf v. Austria, para. 33.
- 4.
Schwenzer (2007), p. 147.
- 5.
Scholars have explored this topic only recently. See Grammaticaki-Alexiou (1999), p. 1113 (noting that “extremely little attention has been paid to the problems created by reproductive technologies in a world where the everyday private life of individuals, due to their mobility, may be linked with more than one jurisdiction”). For further remarks on the topic see Winkler (2011), pp. 115–120.
- 6.
- 7.
See Hurwitz (2000), p. 128 (noting that “surrogacy allows the fracturing of the intention to become a mother from the biological aspects of mothering: the gestational and sometimes genetic aspects”). See also Herring (2010), p. 368, pointing out that “[t]he mother is the woman who gives birth to the child even if she became pregnant using donated eggs. So even though the woman does not have a genetic link to the child, the fact she has carried the child through pregnancy and given birth entitles her to be the mother.” Moreover, “[o]vulation, gestation, birth, and lactation matter, […h]owever, just as their absence does not deprive someone of the status of ‘mother,’ their presence does not make someone a mother.” Rosenblum (2012), p. 71. In general, see Zgonjanin (2005).
- 8.
Under a surrogacy contract, “a woman agrees to bear and give birth to a child so that another person or couple may raise it as legal parent(s).” Gruenbaum (2012), p. 479.
- 9.
See Koppelman (2006), p. 70.
- 10.
Ibidem.
- 11.
- 12.
Koppelman (2006), pp. 73–74.
- 13.
Such a decision would actually precede any principal judgment on the claimed rights. On the debate on the preliminary questions concerning same-sex unions, see Boschiero (2007), pp. 62–70. In fact, “[i]n the majority of cases, the dispute concerns one of these incidents, rather than the validity of marriage for all purposes. The validity of marriage is simply a preliminary or ‘incidental’ question, whose answer may—or may not—determine the answer to the principal question of whether the claimed incident exists.” Actually, “[t]he decision of whether or which incidents to accord depends on the strength of the forum’s public policy with regard to the particular incident, the nature and the context of the particular issue, and, of course, the equities of each case.” Symeonides (2008), pp. 236–237.
- 14.
The European Court of Human Rights examined the consequence of limping situations in Wagner and J.M.W.L. v. Luxembourg, n. 76240/01, judgment of 28th June 2007, para. 110.
- 15.
Joslin (2009), p. 590. In addition, “[a] child could be permanently stripped from receiving motional support from a person who, not only was relied upon by the child as a parent, but who also had been adjudicated to be a parent by a court of another state.”
- 16.
In fact, under the Convention on the Rights of the Child, which has been signed by 140 States, States Parties are obliged to “take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.” Convention on the Rights of the Child, Signed in New York on 20th November 1989 and entered into force on 2nd September 1990, 1577 U.N.T.S. 3 (1999), Art. 2(2).
- 17.
Convention on the Rights of the Child, General Comment No. 7 (2005), CRC/C/GC/7/Rev. 1 (20th September 2006), para. 12.
- 18.
Under the case-law of the European Court of Human Rights the relationship between same-sex parents and their child is protected under the right to respect of family life. See Gas and Dubois v. France, n. 25951/07, judgment of 12th March 2012), para. 37 (holding that “examination of the applicants’ specific case leads to the conclusion that they have a ‘family life’ within the meaning of Article 8 of the Convention”). See once again the chapter by Crisafulli in this volume.
- 19.
See Knoppers and LeBris (1991), p. 333 (noting that this is an area “in which countries, due to cultural, social, economic and religious differences have little or no common ground”).
- 20.
For a comparative analysis of national regulations that recognize to gay and lesbians access to MAP, see Wardle (2006), pp. 424–431 (comparing the various national laws on the matter). Moreover, “[o]nce it is recognized that both married and unmarried persons have a liberty right to reproduce, including the right to use different ART combinations when infertile or when necessary to ensure a healthy offspring, there is no compelling reason for denying that right to persons because of their sexual orientation.” Robertson (2004), p. 330.
- 21.
The application of the presumption of fatherhood to same-sex couples requires a neutral approach as to the gender of the biological mother’s partner. From this standpoint, “[w]ithout a gender-blind (or sexual-orientation-blind) presumption, the lesbian spouse who becomes pregnant by an anonymous donor is the only legal parent to that child, depriving the child of having two legal parents, even if the non-biological spouse is ready, willing, and able to care for and support that child.” Lopez (2011), p. 913. Advocates against same-sex marriage stress the importance of marital presumption in different-sex couples, like the New York Supreme Court did in Hernandez v. Robles, 805 N.Y.S.2d 354 (8th December 2005), aff’d, 855 N.E. 2d 1 (App. N.Y., dec. 6th July 2006), according to which (at 360) marriage “provides a basis for the legal and factual assumption that a man is the father of his wife’s child via the legal presumption of paternity plus the marital expectations of monogamy and fidelity.”
- 22.
In this respect, sect. 19C(3) of the Status of Children Act 1978, amended in 2010, establishes that “[t]he woman’s de facto partner is presumed, for all purposes, to be a parent of any child born as a result of the pregnancy.” This Section applies also to children born before 2010. In this event, parenthood results from joint application to the Registry of Births, Deaths and Marriages.
- 23.
In this respect, for instance, Vermont’s law on civil unions, enacted in 1999, established that “[t]he rights of parties to a civil union, with respect to a child of whom either becomes the natural parent during the term of the civil union, shall be the same as those of a married couple, with respect to a child of whom either spouse becomes the natural parent during the marriage.” An Act Relating to Civil Unions, 15 Vt. Stat. Ann. § 1204(f) (1999). For an analysis of the consequences of legal recognition of same-sex marriage from the standpoint of gay parenting, see McGuire (2004).
- 24.
For some cases, see Joslin (2005), pp. 689–690. Clearly, in a State both parents are legally the child’s parents for the sole fact of being parties to the procreational project, to the extent that this is recognized by the law. National regulations of same-sex marriage and unions tend to provide for a spousal presumption in lesbian couples. Therefore, lesbian couples who have married or entered into a civil partnership under the laws of such State would preserve the horizontal “alliance” between them and the vertical effect on the child, who will be linked to each of them and, at the same time, to both. The aspect of parenthood relating to the “alliance” is highlighted by Cadoret (2008), pp. 48–50 (discussing the opportunity of recognizing the non-biological parent from a perspective of the alliance in the family).
- 25.
Vermont enacted a law on civil unions in 1999 after a ruling of the State Supreme Court in Baker v. Vermont, 744 A.2d 864 (Vt., dec. on 20th December 1999). See An Act Relating to Civil Unions, 15 Vt. Stat. Ann. 1204 (1999). Ten years later, the State legislature passed a law on same-sex marriage, overriding the Governor’s veto through qualified majority.
- 26.
The divorce of same-sex couples has evident transnational implications, for seldom States that do not recognize same-sex marriage are asked to pronounce divorce. On this problem, see Oppenheimer (2011), p. 78 (noting that “same-sex divorce is just beginning to receive attention in the popular press”).
- 27.
For a summary of the case, see Symeonides (2007), pp. 302–303.
- 28.
See Dye (2007).
- 29.
See in this respect Miller-Jenkins v. Miller-Jenkins, 180 Vt. 441, 465 (Vt. Sup. Ct., dec. 4th August 2006) (holding that Janet is Isabella’s parent because, “first and foremost, […] Janet and Lisa were in a valid legal union at the time of the child’s birth, […i]t was the expectation and intent of both Lisa anche Janet that Janet would be [Isabella]’s parent, Janet participated in the decision that Lisa would be artificially inseminated to bear a child and participated actively in the prenatal care and birth. Both Lisa and Jane treated Janet as [Isabella]’s parent during the time they resided together, and Lisa identified Janet as a parent of [Isabella]”) with Miller Jenkins v. Miller-Jenkins, 49 Va. App. 88 (App. Va., dec. 28th November 2006) (rejecting Lisa’s claim that Virginia law prohibited recognition of Janet as a parent in light of Virginia’s refusal of recognizing same-sex couples).
- 30.
This is a quite different phenomenon than forum shopping for straight couples, where the race to foreign courts usually aims at seeking more favorable conditions in custody and visitation. Here, instead, the defendant is allegedly denied her status as a parent, based upon the union’s gender qualification. Actually, unlike previous cases, where parents “sought the court of a second state to issue a more favorable allocation of custody and visitation, [i]n this new wave of same-sex parent cases, the litigants seek to persuade a court to declare that a person previously held to be a parent by the court of another state is, in face, not a parent at all”. See Joslin (2009), p. 565.
- 31.
By this argument, one can use “estoppel to argue that the child’s biological mother is estopped from denying the former partner’s parental status.” Shapo (2006), p. 470. See also O’Bryan (2010), p. 1133 (noting that certain domestic courts “found that the biological parent had ceded over a measure of parental authority and autonomy to the non biological parent and that the non biological parent had a strong parent–child bond with the children”). See also Saladino (2011), p. 4 (arguing in favor of voluntary acknowledgment of paternity to lesbian co-parents).
- 32.
Larson (2010), p. 880.
- 33.
While a human right to adopt does not exist in general, same-sex couples may present themselves with the competent authorities to receive entitlement in this respect. In the European context, same-sex couples can adopt in Belgium, United Kingdom, Spain, Denmark, Iceland and Sweden. See Kipiani (2012), para. 36.
- 34.
Tribunale dei Minori di Brescia, 26th September 2006, No. 2/2006, 74.
- 35.
Ibidem.
- 36.
Cass. Civ., Ch. Ire, 7th June 2012, No. 755 and No. 756 (11-30,261 and 11-30,262), reversing CA Paris, 24th February 2011. As the Court simply put it, Art. 346 of the French Code Civil, establishing that “[n]o person can be adopted by two people if they are not married,” “does not consecrate an essential principle of private law.” Ibidem.
- 37.
In particular, “[i]t is because [French] filiation law requires that the child has a maternal and a paternal link that the transcription of the [foreign] judgment of adoption plénière, which corresponds to a birth certificate, is prohibited.” Azincourt (2012), p. 1314.
- 38.
Cass. Civ., Ch. Ire, 8th July 2010, No. 791 (08-21,740), according to which “the denial of exequatur of a foreign decision, based on contrariety to French international public policy, requires it include provisions that conflict with essential principles of French law; this is not the case concerning the decision that the parental authority be shared between the child’s mother and the adopting woman.”
- 39.
Likewise Neirinck (2012), p. 1, noting that “the reasoning, which is identical in both rulings, is material and supports the different treatment applied between the simple adoption judgment and the full adoption one.”
- 40.
Moissinac Massenat (2012), p. 5.
- 41.
Loi du 17 May 2013 ouvrant le mariage aux couples de personnes de meme sexe, n. 2013-404, JO 18th May 2013. On the development of this bill, especially concerning the aspects relating to filiation (MAP and adoption), see Hauser (2012).
- 42.
Venturatos Lorio (1999), p. 263.
- 43.
Probert (2004), p. 277.
- 44.
Under Section 54(2)(b) of the Human Fertilisation and Embryology Act 2008, 2008 c. 22, amending the previous regulation of 1985, the applicants for a parental order regarding a child born through surrogacy “must be […] civil partners of each other, or [] two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.” For an critical overview of the law, see Anderson (2010), at 37.
- 45.
See Art. 123(2) of the Family Code of Ukraine, which states that “[i]n case of implantation of embryo, which was conceived by spouses, in a body of another woman, the parents of the child are considered the spouses.”
- 46.
In fact, “India seems to be actively vying to be the international surrogacy capital. In 2002, India became the first country to explicitly allow commercial surrogact. The Indian government provides tax breaks to hospitals treating international patients. India has state of the art medical facilities and technical capabilities, combined with lower costs than fertility tourists may experience in their home country.” See Mohapatra (2012), p. 193.
- 47.
Davis (2012), p. 123.
- 48.
See Brugger (2011), p. 668 (noting that “[t]he decision to go abroad to these reproductive services often is triggered by substantive differences in national laws,” while “[t]he trend towards surrogacy tourism in a few favorable—and inexpensive—parts of the worlds, has raised concerns about the need to develop and implement measures on a global level”).
- 49.
In re X and Y (Children) (Parental Order: Foreign Surrogacy), [2008] EWHC 3030 (Fam), [2009] Fam 71 (9th December 2008).
- 50.
Ibidem, p. 75 (noting that “[t]he effect of all this was of course that these children were effectively legal orphans and, more seriously, stateless”).
- 51.
Ibidem, p. 81.
- 52.
Ikemoto (2009), p. 278.
- 53.
Gruenbaum (2012), p. 495.
- 54.
- 55.
Ibidem, p. 54.
- 56.
Accordingly, “[t]he Italian court concluded that the prohibition of surrogacy under Italian law was not per se an indicator that the recognition would be against Italian (international) public policy.” Gruenbaum (2012), p. 497.
- 57.
Supra, note 49, at 81. It followed that “[i]f public policy is truly to be upheld, it would need to be enforced at a much earlier stage than the final hearing of a Section 30 application. In relation to adoption this has been substantially addressed by rules surrounding the bringing of the child into the country […]. The point of admission to this country is in some ways the final opportunity in reality to prevent the effective implementation of a commercial surrogacy agreement. It is, of course, not for the court to suggest how (or even whether) action should be taken, I merely feel constrained to point out the problem.” Ibidem. Actually, “[a]s it is necessary for the child to be living with the applicants, it is rarely the case that the removal of the child from its settled home will promote its welfare.” Anderson (2010), p. 40.
- 58.
For an application of In re X, reference could be made to In re IJ (a child) (Overseas Surrogacy: Parental Order), [2011] EWHC 921 (Fam), [2011] All ER (D) 241 (Apr) (19th April 2011), maintaining that, in light of In re X, “it was crystal clear that the best interests of IJ required the making of the Parental Order sought by the applicants;” In re L (a child) (Surrogacy: Parental Order), [2010] EWHC 3146 (Fam) (8th December 2010), noting that “The effect of that must be to weight the balance between public policy considerations and welfare (as considered in Re X and Y) decisively in favour of welfare.”
- 59.
Muir Watt (2000).
- 60.
Ibidem, p. 506.
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Winkler, M.M. (2014). Same-Sex Families Across Borders. In: Gallo, D., Paladini, L., Pustorino, P. (eds) Same-Sex Couples before National, Supranational and International Jurisdictions. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-35434-2_16
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