lgbti and mar: love from first...

L i n a P a p a d o p o u l o uL i n a P a p a d o p o u l o u

Assoc. Professor of Constitutional Law,

Aristotle University of Thessaloniki, Greece

LGBTI and MAR: love from first sight

Reproductionas a choice (or obligation?)

Of love

Lina Papadopoulou, Ass. Prof. Aristotle University of Thessaloniki, Greece

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Lesbian motherhood

• In the decade of the 1990’s • having children• was enabled by new reproductive technologies

(MAR).

Custody

• and legal recognition of the relationship between lesbian [and gay] parents and their children

• are currently high on the agenda of lesbian and gay movements in many European countries


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Medically Assisted Reproductionempowerment or enforcement?

“political struggles for gay and lesbian citizenship rights in areas of intimacy are driven, at least in part, by acceptance of a new ideology and mandate: that gays and lesbians reproduce in the same way as heterosexual couples”

Mamo, Laura 2007 Queering Reproduction. Achieving Pregnancy in the Age of Technoscience. Durham & London: Duke University Press


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Medically Assisted Reproduction:empowerment or enforcement?

• Does MAR offer new opportunities and enable to lesbians and gay men

OR• does it rather make homosexuals (and esplesbians, i.e women) subject to the same social pressure like heterosexual women

• making them feel “obliged” to have children since they nowadays “can” do it

• without need to enter a fake marriage?

law and technology• is law condemned to run after technological developments?

• technological determinism• (¿will) whatever is technologically possible will become legal sooner or later(?)– eg surrogacy for single or gay men?– MAR without medical indication and / or – for social (not medical) infertility (?)– REPRODUCTIVE ‘TOURISM’ OR CBRC


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the obsession with the biology

• the ownership principle – having MY own children– even if heterologous, pregnancy endorses the blood ties

• MAR instead of adoption (?)– a question that should be posed: does liberalising MAR come together with facilitating adoption?

– why (no)?


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The ‘rainbow families’: how many parents?

– 1 single parent– 2 same‐sex

• one biological, one social• two biological mothers: one biological material (oocyte), the other bears the embryo

– 3: two mothers and the sperm donor (biological father)

– 4: two co‐mothers, the biological father and his partner = a bi‐nary family (???)

– 2013 British Columbia legislation allows up to four legal parents. – The Ontario Court of Appeal ruled that a young boy could have one legal father and two

legal mothers (2007).


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Lina Papadopoulou, Ass. Prof. Aristotle University of Thessaloniki, Greece 9

LGBTI & MAR = love form first sight

Their children’s legal recognition

and free movement

in Europee.g. Austria (for all‐female‐couples from 1.1.2015)


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Parenting of single gay/lesbian = no discrimination allowed

• If an individual happens to be gay or lesbian, • the European Court of Human Rights has ruled against sexual orientation discrimination in the field of parenting

• For example: no discrimination in case one parent is gay • a divorce court had awarded parental responsibility to the mother, on

the grounds that the father ‘was a homosexual and was living with another man’ (Mouta v Portugal para. 34).


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Parenting of single gay/lesbian = no discrimination allowed

• in 2008 • case involving an application for individual adoption• the ECtHR found it unacceptable under Art. 8 and 14 to base the rejection of the applicant on considerations regarding her sexual orientation (EB v France paras 93–98)

Lina Papadopoulou, Ass. Prof. AristotleUniversity of Thessaloniki, Greece

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Same‐sex couple as parents

• allow the same‐gender partner to adopt his/her partner’s biological child

• same‐sex couples jointly to foster or adopt a child• and/or provide for joint parental status and/or responsibilities if a child is born to a woman in a lesbian relationship

• allow women in lesbian relationships to have a child through medically assisted insemination


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Co‐parenting rights

Despite the growing number of states recognising same‐gender relationships

the majority of them,

are quite reluctant

to assign adoption of co‐parenting rights andobligations

to samesame‐‐sexsex couplescouples

Lina Papadopoulou 14

Supranational Legal Supranational Legal RecognitionRecognition

Can a same-sex couple derive a right to marry or legal parenthood from international human rights law?


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Parenting of gay/lesbian couple = problem (!)

• 1992 the European Commission on Human Rights found that, • as regards joint parental authority over a child born by

means of artificial insemination

• ‘a homosexual couple cannot be equated to a man and a woman living together’(Kerkhoven v the Netherlands para. 2)

Has this changed?

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European Courts and Recognition

• Can European Courts (CJEU and/or ECHR) Oblige a state to adopt civil marriage or same‐sex parenthood?

• NO ! Unless we reach a majority for each institution! (Council of Europe or European Union)

• judgments based on the common ground of their members • So they may impose a minimum recognition only if a majority of member

states already has offered such a recognition

= domino effect presupposes change in many member states!

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European Courts and Recognition

• judgments based on the common ground of their members • BUT• principle of non‐discrimination opens up a possibility of extending

reproductive autonomy and its legal recognition

• so for example if a state allows for • recognition of filiation• after heterologous fertilisation • to non‐married • heterosexual partners, • it should also allow it for same sex non‐married partners

• A new field for strategic litigation for some countries, eg Greece • who have a liberal legal framework for opposite sex partners


Freedom of movement of same-sex families

within the European Union


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Viviane RedingDiscrimination of same‐sex married or in civil‐partnership couples (debate)7 September 2010, European Parliament [Strasbourg]

“Let me stress this. If you live in a legally‐recognised same‐sex partnership, or marriage, in country A, you have the right –and this is a fundamental right – to take this status and that of your partner to country B. If not, it is a violation of EU law, so there is no discussion about this. This is absolutely clear, and we do not have to hesitate on this.”


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Directive 2004/38/EC

• regulates the right of citizens of the EU

• and their family members • to move and reside freely within EU• It does not differentiate between different‐sex and same‐sex couples.

• In practice, however, ...


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• MSs respect the right to freedom of movement• MSs recognise the civil status of different‐sex couples• Social security is guaranteed under Reg. 1408/71

BUT

MS often argue that non‐domestic partnerships are ‘not equivalent’.

Many MSs do not respect the right to freedom of movement Host MSs feel free to base their recognition of the civil status of same-sex couples on its form of legal recognition or otherwise Host MSs only provide social security when they recognise same-sex couples as equal to different-sex couples

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Lina Papadopoulou, Lina Papadopoulou, Ass. Prof. Aristotle University of Thessaloniki, GreeceAss. Prof. Aristotle University of Thessaloniki, Greece

tweet @rotm_eu#rotm2014

L i n a P a p a d o p o u l o u��Assoc. Professor of Constitutional Law, �Aristotle University of Thessaloniki, Greece Reproduction�as a choice �(or obligation?)�Of loveLesbian motherhoodMedically Assisted Reproduction�empowerment or enforcement?Medically Assisted Reproduction:�empowerment or enforcement?law and technologythe obsession with the biologyThe ‘rainbow families’: how many parents?� Parenting of single gay/lesbian �= no discrimination allowedParenting of single gay/lesbian �= no discrimination allowedSame-sex couple as parentsCo-parenting rightsSupranational Legal RecognitionParenting of gay/lesbian couple �= problem (!)European Courts and RecognitionEuropean Courts and RecognitionFreedom of movement �of same-sex families�within the European UnionViviane Reding�Discrimination of same-sex married or in civil-partnership couples (debate)�7 September 2010, European ParliameThank you very much�for your attention!

lgbti and mar: love from first...

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