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Same-sex unions in the EU

Same-sex couple

© Carlos Caetano / Fotolia

At the moment of writing, six EU countries allow same-sex couples to marry, these being the Netherlands (since 2001), Belgium (2003) Spain (2005), Sweden (2009) Portugal (2010), and Denmark (2012). Luxembourg and France are planning to introduce a gender neutral marriage in the near future. In these two countries, same-sex couples have been already legally recognised by the introduction of civil unions or similar arrangements. This is also the case for Austria, Germany, United Kingdom, Ireland, Finland, Slovenia, Hungary and Czech Republic. In the remaining member states, domestic legislation does not recognise same-sex couples. What is more, in Latvia, Lithuania, Poland, Romania and Bulgaria same-sex marriages and/or same-sex partnerships have been expressly prohibited.

Source: Legal Recognition of Same-Sex Relationships in Europe / Katharina Boele-Woelki; Angelika Fuchs, Intersentia 2012, 310 p.

General Rights and Duties

A Patchwork of Partnerships: Comparative Overview of Registration Schemes / Ian Curry-Sumner in Legal Recognition of Same-Sex Relationships in Europe / Katharina Boele-Woelki; Angelika Fuchs, Intersentia 2012, pp 71-87

Due to the introduction of a gender neutral marriage, same-sex couples can enjoy the same rights and have the same duties of heterosexual couples. Parenting rights in the case of Portugal are the only exception. As far as civil unions are concerned, the situation is patchy. The literature distinguishes between “weak” and “strong” registrations according to their level of similarity to the institution of marriage. The French PACS are given as an  example of weak registration as they entail protection solely in the fiscal and property law fields. Slovenian and Czech registration schemes are also said to belong to this category. Conversely, the Dutch registration scheme is considered a strong registration: registered partners are also in the same position as spouses with respect to inheritance law, name law and parental authority rights. Finland and Germany also know systems of strong registration.

For more information on the legislation of other Member States, please consult the Library Navigator on The Free Movement of Same-Sex Couples in the EU

Adoption

Overview of Forms of Joint legal Parenting Available to Same-Sex Couples in European Countries / Kees Waaldijk, Droit et société 2009 72, pp 383-385

Both joint and second-parent adoptions are open to married same-sex couples, except in Portugal. Moreover, the UK grants same-sex civil partners full adoption rights, and both Finland and Germany allow a registered partner to adopt his/her partner’s child. Despite adoption rights being guaranteed by the law, same-sex couples face considerable obstacles when applying for an adoption. Notably, this is the case for inter-country adoption, which is often not possible when the country of origin does not allow homosexual couples to adopt children.

Surrogacy and Male Same-Sex Couples

Recognition of parental responsibility: biological parenthood v. legal parenthood, i.e. mutual recognition of surrogacy agreements: What is the current situation in the MS? Need for EU action? Note / Velina Todorova, European Parliament – Policy Department C, 2010, 18 p

Surrogacy and Same-Sex Couples in the Netherlands / Machteld Volk and Katharina Boele-Woelki in Legal Recognition of Same-Sex Relationships in Europe / Katharina Boele-Woelki; Angelika Fuchs, Intersentia 2012, pp 123-139

De logeerbuik: draagmoederschap in Nederland / Machteld Vonk, Actuele ontwikkelingen in het familierecht – vijfde Ucerf symposium, 2011, pp. 63-72

Barriers to inter-country adoption might prompt male same-sex couples to turn to surrogacy, if allowed. In fact some member states, such as Sweden, explicitly prohibit surrogacy. Even when permitted, the legal consequences of surrogacy are often unclear as surrogacy is not regulated by the law in the majority of the member states. In the Netherlands for example there is no special procedure to follow for the acquisition of parenting rights by the couple hoping to adopt. Two scenarios are possible. In the case that the surrogate mother is married, both intended parents can become a legal father by adopting the child. Before applying for an adoption, the surrogate mother and her spouse have to renounce their parental responsibility. If the surrogate mother is unmarried, one of the intended parents can recognise the baby. The partner can adopt the baby at a later stage and become legal father as well. This second procedure can however not be followed if the intended parents are married. In that case one of them can recognise the child only if “family life” can be proven between the baby and him. In the UK, same-sex couples tend to encounter fewer problems, as surrogacy is regulated by law. The Human Fertilisation and Embryology Act (HFEA) provides for the transfer of legal parenthood through a parental order and this applies for civil partners as well.

Lesbian couples and legal parenthood

Parenthood for Same-Sex Couples – Scandinavian Developments / Maarit Jänterä – Jareborg in Legal Recognition of Same-Sex Relationships in Europe / Katharina Boele-Woelki; Angelika Fuchs, Intersentia 2012, pp 91-122

All or nothing: The Dilemma of Southern Jurisdictions / Cristina Gonzalez Beilfuss in Legal Recognition of Same-Sex Relationships in Europe / Katharina Boele-Woelki; Angelika Fuchs, Intersentia 2012, 310 p. 41-53

Parenthood for same-sex couples / Stonewall 2010, 7 p.

One, Two or Three Parents: Lesbian co-mother and a known donor with “Family Life” under Dutch Law / Machteld Vonk, International Journal of Law, Policy and the Family 2004 18(1), 103-117

Lesbian couples, who do not necessarily need to resort to surrogacy, can also face problems when applying for legal parenthood. The presumption of paternity according to which the husband of a married woman is automatically recognised as the legal father of a child, does not usually apply if the mother is married to another woman. As a result, a lesbian non-biological mother is often required to go through a time-consuming full adoption procedure to acquire parental responsibility. This hurdle has however been partially or totally removed in some member states. In Spain and Sweden, for example, it is already possible for the mother’s wife to ask to be recognised as co-mother, on condition that the child is conceived through sperm donation carried out in a hospital. In the UK, the civil partner of the mother is automatically treated as legal parent, even when the donor is known and insemination has taken place at home. In the Netherlands, the House of Representatives has recently approved a bill that will allow the non-biological mother to obtain legal parenthood through an administrative procedure. Moreover, the law would allow for automatic recognition of the spouse/partner of the mother as legal parent, but only in the case that the sperm donator is unknown.

Discussion

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