Parenthood for Same-Sex Couples in the European Union: Key Challenges

Abstract

EUROPEAN COURT OF HUMAN RIGHTS ’ GROUND RULES ‘ SAME-SEX COUPLES: AN OBLIGATION TO LEGALLY RECOGNISE UNION, BUT NO OBLIGATION TO GRANT ACCESS TO MARRIAGE European Court of Human Rights (ECtHR) jurisprudence provides several EU-wide ‘ground rules’ for variable levels of parenting rights for same-sex couples across the EU. However, in 2010, the Court drew a line in the sand in the case of Schalk and Kopf v. Austria in finding that there was no obligation for a Member State to grant same-sex couples access to marriage. The Court has reiterated this position on two occasions since: in Gas and Dubois v. France , and in X v. Austria . This baseline has now been entrenched: there appears to be no suggestion on the horizon of the ECtHR imposing a positive obligation on Member States to recognise same-sex marriage. By contrast the horizon for same-sex parenthood outside marriage is brighter. In Vallianatos and others v. Greece , in the absence of any domestic recognition of same-sex union, Greece had taken the unusual step of creating a civil partnership scheme, but reserving it to heterosexual couples only. The Court found the measure to be directly discriminatory and a violation of Articles 8 and 14 of the European Convention on Human Rights (ECHR), although at that stage did not suggest a positive obligation to provide for domestic legal recognition of same-sex union. However, in 2015, the court went a step further and put down another marker in Oliari and others v. Italy . The Court found that the absence of any legal framework or regime providing for the recognition and protection of same-sex unions is a breach of Articles 8 and 14. The current position is thus that there is no obligation on Member States to grant same-sex couples access to marriage, but there is an obligation to implement some framework for the recognition of same-sex union. DIRECT DISCRIMINATION UNACCEPTABLE, BUT NO OBLIGATION TO PROTECT AGAINST INDIRECT DISCRIMINATORY OUTCOME In Gas and Dubois v. France , the Court found that a regime that reserved parenting rights to married couples was not a breach of Articles 8 and 14 ECHR, despite the fact that this had an indirectly discriminatory effect on same-sex couples, who at the time had no access to marriage rights.