The parenting rights of same-sex couples under European law

Abstract

Few issues incite as much controversy in contemporary law and politics as the recognition and protection of the rights of sexual minorities. The legal recognition of same-sex relationships, in particular, has, in the last couple of decades, become one of the most prominent issues discussed in parliaments, in courts, and in the media around the world. A much more controversial issue, nonetheless, is parenting by same-sex couples, with the important legal question being whether, under a specific legal system, same-sex couples can be legally recognised as the joint parents of a child. The article explores this question from the point of view of European law in two sections, the first considering the Council of Europe’s European Convention on Human Rights and the second European Union law. In both instances, the European directives do not claim competence over family law in the European member states. In the first, states are free to establish laws regulating families, with the important proviso that all people must be treated equally, with no discrimination, including discrimination based on sexual orientation. Countries are not obliged to recognize same-sex unions nor same-sex parenting rights, so long as these are in line with practices for heterosexual couples. A similar situation exists in European Union law. However, both regulating bodies can and do enforce the recognition of the home country’s decisions by host countries of Europeans who move to a different country. In EU law, this comes under the freedom of movement provision. All of this means that lack of guidance at the European level allows that the parental rights that same-sex couples enjoy at national level vary considerably throughout Europe. However, the article shows that the cross-national provisions establish a legal principle that pushes towards an equalization of family law in regard to same-sex couples, motivated by those who establish residence in one country, already having their rights legally recognized in another.