When same-sex couples and their children cross borders within the EU, established legal ties can cease to exist, benefits can disappear, and some children cannot get citizenship and are left behind in statelessness. Reading law professor Alina Tryfonidou has written a new report arguing that EU law should require all Member States to recognise existing ties within these ‘rainbow families’.
Despite impressive advances in medicine and technology, same-sex couples are still incapable of having children who will be genetically related to both members of the couple.
However, same-sex couples can become de facto joint parents in a number of ways, such as through donor sperm insemination, surrogacy, or adoption.
But when they do become de facto joint parents of a child, the law of their country may not allow them to be recognised as the joint legal parents of their child; usually, this translates into a situation whereby the non-genetic parent cannot legally establish familial links with the child.
I recently wrote a report for NELFA – the Network of European LGBTIQ Families Associations arguing that EU law requires EU Member States to legally recognise the existing ties among people within rainbow families when they cross borders. At a February 2020 meeting with the European Parliament’s Intergroup on LGBTI Rights and EU Commissioner for Equality, Helena Dalli, NELFA sought to raise awareness of the current situation and called for a change by presenting my report.
Currently, there is a legal patchwork regarding the parental status of same-sex couples in EU Member States, with only a minority providing these couples with full parental rights. Moreover, it is not made clear in EU legislation and documents if, for the purposes of EU law, a rainbow family constitutes a ‘family’.
Those states which do not recognise rainbow families within their own legal system therefore have cause to believe that they are free to refuse to recognise legally established familial links within rainbow families when they move to their territory.
My report calls on the EU Commission to take action so that when rainbow families move between EU Member States the legal ties between children and parents do not cease to exist, as otherwise there will be a violation of EU free movement law and of certain fundamental (human) rights protected under EU law.
EU free movement law prohibits national measures that obstruct the inter-state movement of EU nationals.
So the refusal of the host state to legally recognise the links within families – as already established in another legal system – can create unjustified restrictions to free movement in two ways. First, by not recognising the familial links, some family members can be refused entry – obviously, if the whole family is not allowed to move together this will most likely lead to a decision not to move at all.
Secondly, if everyone in the family is admitted into the host state but, once there, are denied a number of rights or entitlements they previously enjoyed when recognised as a family, this will cause great inconvenience and act as a deterrent against moving.
What is more, failure to recognise these family ties places people in a legal vacuum which breaches their right to private and family life, which is protected as a general principle of EU law and under Article 7 of the EU Charter of Fundamental Rights. It can also amount to an unjustified breach of the prohibition of discrimination on the ground of sexual orientation, since if the parents of the child were an opposite-sex couple, in the vast majority of cases they would both be legally recognised as the child’s parents, even if the child was adopted or was conceived via assisted procreation methods and was thus not genetically linked with one or both of the parents.
The ideal solution, my report suggests, is that the EU judges and/or the EU legislature should fashion rules and principles that require all EU Member States to legally recognise the familial ties among the members of rainbow families that move between states, as these have been established elsewhere.
But reaching this solution would be difficult – so the report suggests alternative steps: the European Commission should bring an infringement action against the defaulting EU Member States seeking for a declaration that non-recognition in this context amounts to a breach of EU law; and it should issue a Communication to clarify that the notion of ‘family’ for the purposes of EU law includes rainbow families. This will grant parity in legal treatment between the families of same-sex and opposite-sex couples who move between EU Member States.
Professor Alina Tryfonidou specialises in EU Law (especially EU free movement law, Union citizenship, investor residence and citizenship schemes) and LGBT+ rights.