European Court of Human Rights (ECHR) hears another second-parent adoption case

Last week the European Court of Human Rights (ECHR) heard the case of  X. & Others v. Austria, its second case on the availability of second-parent adoption.  A webcast of the oral argument in the case -- translated into English -- is available on the ECHR website here. I wrote about the hearing in Gas & Dubois v. France last April; that case has yet to be decided.  In Gas & Dubois, the child was conceived through donor insemination and France denied the mother's partner the ability to become a second parent through adoption.  In X. & Others, the child was born in the context of a prior heterosexual relationship.

According to Rob Wintemute, leading European expert on LGBT family law, unmarried different-sex couples may adopt each other's children in Austria. If the child's birth mother had been living with a new unmarried male partner, instead of a female partner, the new male partner could apply to adopt the child. The genetic father would have to consent, or the court would have to be persuaded to override his refusal to consent because the step-parent adoption would be in the best interests of the child.  Because a step-parent adoption or second parent adoption is legally impossible for a same-sex couple in Austria, the trial court did not reach the question of the genetic father's consent.

The lawyer arguing for Austria pointed out to the ECHR that most European countries do not allow a child to have two mothers or two fathers.  She argued that this is relevant to the leeway given to each country (called the "margin of appreciation") in implementing the European Convention on Human Rights provisions on respect for family life.

The petitioners are represented by Helmut Graupner, leading Austrian gay rights attorney.  He noted that the Youth Welfare Office found that it would be in the child's best interest for the mother's partner to have legal custody of the child but that this was not permitted under the law.  Graupner quoted to the court the opinions of numerous experts on the well-being of children raised by same-sex couples.

Although Europe was way ahead of the US in recognizing same-sex couple relationships, beginning with registered partnership in Denmark in 1989 and same-sex marriage in the Netherlands in 2001, European countries have actually lagged behind the US in recognition of parentage for same-sex couples.  It is a relatively recent development that some countries do allow second-parent adoption or parentage for the same-sex partner of a woman who bears a child through donor insemination.  Austria not allows same-sex couples to enter registered partnerships, but the law explicitly bans second-parent adoption for registered partners.

European Court of Human Rights hears appeal of lesbian couple denied second-parent adoption in France

A French lesbian couple, denied a second-parent adoption of the daughter born to one of them using donor insemination, has taken their case to the European Court of Human Rights (ECHR). The couple, Nathalie Dubois and Valerie Gas, began living together in 1989, and their daughter, Alexandra, was born in 2000. Alexandra was conceived in Belgium because assisted reproduction is not available to a lesbian couple in France. The hearing before the ECHR last week is available (with simultaneous English translation) on line.

The European Convention on Human Rights prohibits discrimination under Article 8 and protects family life under Article 14. The two articles together have been the basis for previous challenges. In 2008, the ECHR, in E.B. v. France, ruled in favor of a single lesbian who had been denied the ability to adopt because of her sexual orientation.

Arguing on behalf of the couple, attorney Caroline Mecary presented numerous legal consequences denied Alexandra because Valerie could not adopt her. She contrasted Alexandra's position to that which would be available had her mother had a male, rather than a female, partner. Under French law, an unmarried different-sex couple can both be the parents of a child born to the woman using donor insemination. (European countries, in general, are more likely than the US to treat unmarried and married heterosexual couples equally). Furthermore, French courts do recognize second-parent adoptions granted in other countries.

The attorney for the French government argued that the European Convention on Human Rights does not grant a right to adopt. She tried to reassure the court that Alexandra would be protected under various other French laws, including the fact that Valerie will be allowed to adopt once Alexandra becomes an adult, as French law allows adult adoption that adds a parent for a child.

She argued for distinguishing the E.B. ruling, but then never said how it could be distinguished. She also argued that marriage is the most protective environment for raising children. Lest we think that groups opposing gay and lesbian parenting exist only in the United States, an organization called the European Centre for Law and Justice, affiliated with its American counterpart, commented in a press release that this case is "the latest in a long series of attempts to attack the European common heritage, by introducing new anthropological, moral and social views." Some of France's arguments track precisely arguments here against same-sex marriage, notwithstanding the fact that this case concerns parentage not marriage.

Rob Wintemute, law professor at King's College, University of London, presented argument on behalf of the European region of International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) and other organizations. He presented the ECHR information on the many countries/states that do permit a child to have two parents of the same sex. Most eloquently, he began his remarks as follows: "The strongest and most persistent prejudice against the lesbian and gay minority in Europe, is that they represent a threat to the welfare of children." He also urged the court not to adhere to a rigid one-mother/one-father model of family life.

The judges of the ECHR do not ask questions during argument but do ask them after all the lawyers complete argument. (The judges ask all their questions at once and then the lawyers respond.)

LGBT Rights in Latin America

The Inter-American Dialogue today held a program called "LGBT Politics in Latin America and the Caribbean: Why Now and What Next?" The featured speaker was Javier Corrales, an Amherst College professor and co-editor of The Politics of Sexuality in Latin America: A Reader on Lesbian, Gay, Bisexual and Transgender Rights. The book is billed as the first English language reader on LGBT politics in Latin America. The advent of same-sex marriage in Argentina makes the volume especially timely. That development is so new it is not in the book, but Corrales explained it as possible because there is little church attendance and there are few evangelicals in Argentina. One of the commentators, Joseph Palacios, added that the church has little credibility in Argentina because of its support of the military dictatorship.

Among Corrales's interesting points about the difficulty of building an LGBT movement in Latin America is what he described as the comfort of the closet for elites. There is a double standard in married life where someone can have a same-sex relationship while heterosexually married. Because of this such people do not come out, the movement lacks elites, and the lessening of homophobia that happens when more people are out does not happen. In addition, few politicians are out. Corrales described this as a major difference from the US, where the closet is uncomfortable, the world outside is more comfortable, and so people are fed into a movement.

Macarena Saez, a Chilean human rights lawyer now a fellow at American University Washington College of Law, also spoke. Prof. Saez is one of the lawyers working on the case of Karen Atala, a Chilean judge who lost custody of her children when she came out as a lesbian. The trial and appeals court found in her favor, but the Supreme Court of Child reversed. The Supreme Court judges never met her; they simply decided, using best interests of the child language, that the children might fact stigma and so should be raised by their father. Atala's case is now before the Inter-American Commission on Human Rights, the first case before that tribunal about discrimination based on sexual orientation.

Prof. Saez also noted that until the 1990's there was no space for an LGBT movement in Latin America because the lack of basic political rights, the numbers of people in exile, and the focus on staying alive left room for nothing else. It is great news, she noted, that there is enough democratic stability in the region that it is possibility for an LGBT rights movement to emerge.

Prof. Saez also expressed some concern about the focus on marriage. In Columbia, she noted, the law has moved in the direction of giving rights to same sex and unmarried heterosexual partners. She thought it could be a good thing to devalue marriage and shift to something more inclusive as in Canada has done. Her comments are certainly in the "beyond marriage" vein. Now that there are moves towards same-sex marriage recognition in Latin America, there needs to be a concomitant reevaluation about what relationships count. Prof. Saez pointed out that Ecuador defines marriage as a man and a woman in its constitution but could follow Columbia and make marriage matter less.

Lesbian couples as joint legal parents in Europe

I'm still excited about our new law in DC that makes both lesbian partners the parents of the child that one of them gives birth to if her partner consented to the insemination with the intent to parent or if the couple is married or registered domestic partners. If you missed the details, check this post.

I've gotten an update from Dutch law professor Kees Waaldijk on the status of lesbian couples as parents in Europe. Kees publishes an amazing amount of scholarship and analysis about LGBT law in Europe. Lucky for us, he publishes a lot of it in English, or translates it into English on his website.

Recently, Kees compiled the information about when lesbian couples can be recognized as the legal parents of the child that one of them gives birth to -- without having to go through adoption. The first thing to say about these laws is that they apply only when conception occurs through assisted reproduction. That is not as much of a problem as the fact that all require that insemination with donor semen take place in a medical facility. So, lesbian couples in Iceland, Norway, and the United Kingdom (not in Northern Ireland) can both be recognized as legal parents, but not if they perform the insemination at home. Legal status for both women is available in Spain and Sweden as well (also only when the insemination is medically assisted), but in those countries the couple must be married.

So on the one hand it looks like the US is behind Europe again (think registered domestic partnership in Denmark in 1989 -- 11 years before Vermont authorized civil unions). On the other hand, assisted conception laws written beginning in the 1970's in the US were often limited to situations in which doctors performed the inseminations. Our 21st century model laws all eliminate that requirement. And our models laws do not require the couple to be married. It's true that the 2002 Uniform Parentage Act is limited to a man and a woman who have a child using assisted conception, but they do not have to be married. The Model Act from the American Bar Association is gender-neutral and marital status-neutral, and it serves as a basis for our statute in DC.

I'm glad to see Europe moving forward on parentage rights. For a long time European countries recognized partners but prohibited second parent adoption. Now second parent adoption of a partner's biological child is available in Denmark, Finland, Germany, Iceland, Netherlands, Norway, Spain, Sweden, and the United Kingdom. But for laws creating parentage without the need for adoption, I'll take DC's over all of these. Australia and some Canadian provinces also make the partner of a woman who gives birth after donor insemination the parent of the child without needing to adopt -- and none of those places require either that the couple be married or in a registered/formalized relationship or that they use medical services to conceive.

The European countries seem to be copying each other. It's progress. But it's not the gold standard.

LGBT rights -- and comments on Israeli-Palestinian conflct -- at Tel Aviv conference

Earlier this week, Tel Aviv University was the site of the 9th annual queer studies conference An Other Sex. I was honored to deliver a keynote on my book.

Israel has a distinctive legal regime within which to consider same-sex relationships. There is no civil marriage in Israel, only religious marriage. This keeps many straight couples from marrying because, for example, a Jew cannot marry a non-Jew. So there has been pressure for years for different-sex couples to not make marriage the dividing line between relationships that count and those that don't.

Israel recognizes the legal status of those "known in public" as spouses. It also allows couples to register foreign marriages (they say Cyprus does a thriving business marrying different-sex couples who can't marry in Israel). Because of this (after much litigation), Israel will register the marriages of same-sex couples who marry elsewhere and will recognize same-sex unmarried couples in ways that are similar to those accorded unmarried different-sex couples.

There is a push for civil marriage here -- but it would be for different-sex couples only. So this is not a good thing for lesbian and gay families.

Tel Aviv University law professor Aeyal Gross gave comments after my talk. He opposes the fight to same-sex marriage for many reasons. He believes that same-sex marriage stigmatizes those who don't marry and who have "less or more" than one partner. He believes it reinforces the privileging of marriage, creates pressure to marry, subordinates sexual liberty, and excludes those without a partner even more than today's construct.

In my book, I say that if marriage was not the dividing line between relationships the law counts and those it doesn't then marriage would be a real choice. (I say it is a choice in Canada because no couple has to marry there for legal consequences, even though both straight and gay couples can marry). Aeyal Gross questions whether marriage will really be a choice given the pressure it will produce. He supports ending state marriage. He says he has some sympathy for civil unions or civil partnerships.

I support renaming the official status for all couples "civil partnership." I did not think of this as the same as abolishing marriage, but as I said in a previous post, many American marriage equality activists object to this and consider it no different from abolishing marriage. I now think that Aeyal and I are not far apart and that we are both quite distant from the marriage equality party line about the imperative of keeping the label "marriage" as part of civil law for gay and straight couples.

In my talk at the conference, I read excerpts from the California marriage briefs filed by gay rights groups extolling the word "marriage." (For my post on this, read here). There were audible gasps of disbelief from the audience.

I have often heard that it is more accepted to criticize the Israeli government in Israel than it is in the US. I wouldn't know how to quantify either exactly, but criticism of the Israel government policy towards Palestinians was woven into remarks and questions at this queer theory conference. One speaker compared the resistance by the marginalized queers who rebelled at Stonewall to resistance against the Israeli occupation of Palestinian territories. Another spoke out against bills now pending in the Knesset. One would require as a condition of citizenship a "pledge of allegiance" to Israel as a Jewish state. Another would make it unlawful to observe what the state of Israel calls Israeli Independence Day as a day of commemoration of the Nkaba (translated "catastrophe") which is how the Palestinians view it. One audience member began a question to me about the politics of supporting surrogacy for gay men (where multiple oppresions may be involved) with a comparison of the question she was about to ask me to the question of whether a person who is a Jewish settler in the West Bank can be considered a feminist.

All in all, an amazing experience.

2 Mums and a Dad...and the law in Australia

I've been in Australia for more than a month now, on a Fulbright Specialist grant, teaching, lecturing, conferring, etc at two universities -- University of Technology Sydney and University of Melbourne. Of all my duties here, one of the most fun was my participation today on a panel after a screening of the film 2 Mums and a Dad. Australian filmmaker Miranda Wills followed a lesbian couple and the man they choose as a semen donor/father for 18 months, during which time they planned for and had a child, negotiated and renegotiated their parenting arrangements, and went through many highs and lows.

This is not a how-to-do-it movie. And it is not a feel-good movie. It's the real story of real people, and it isn't always pretty. At the end of the movie, when Darren is upset about the restraints on his time with the baby, Marley, he tells the camera that his "trump card" is the desire of the two women to have another child with him. He figures that's the way he can get what he wants with Marley. I've rarely seen any behavior so unflattering in a parent.

I was pleased -- and more than a little surprised -- to learn from the filmmaker at the Q and A after the film that the three adults did, in fact, resolve their issues well and have another baby.

When the film was made, Darren would have been recognized as the child's father, and the nonbio mom would not have been a parent. But massive law reform in Australia has changed all that. Now a child born to a lesbian couple using donor insemination is the child of the two women and not of the donor. And the law is retroactive. A whole lot of children now have two moms -- even if the moms have since separated. All that's required is that the nonbio mom consented to the bio mom's insemination while the couple was together.

With this law reform, Australia joins a number of Canadian provinces in recognizing a child's two mothers from birth. No adoption required.

What about the donor? Well, in Australian law a person who is not a parent can still obtain a court order for access to a child if the person has a significant relationship with the child. So Darren would qualify (as did nonbio moms before the new law reform turned them into legal parents.) In other words, not being a legal parent doesn't leave a person who functions as a parent entirely at the whim of the legal parent, as so many US states do.

Four Australian lawyers spoke on the panel after the film, explaining the new laws. Two of the four are also parents -- both in four-parent families consisting of both a lesbian and a gay couple. One has a newborn, but the other has a seven-year-old. And that's a seven-year-old with four parents who work well together. But the law only recognizes two of them as parents.

In the US there have been a few third-parent adoptions. Those are adoptions that create a second legal mom for a child while leaving a semen donor with parental rights. Before we can figure out how best to protect the parent-child relationships in all our families, we in the US need to get the basic family form -- a lesbian couple who plans for and has a child as two moms -- recognized in American law. And a second-parent adoption shouldn't be required. Because a parent shouldn't have to adopt her own child. A husband doesn't have to adopt the child his wife gives birth to using donor insemination, and a lesbian couple shouldn't have to go through that process either.

The Australians have beaten us to it. Let's learn from them.

Hungarian Court rejection of different-sex registered partnership is the wrong result

A year ago, the Hungarian parliament passed a law permitting same-sex and different-sex couples to register as domestic partners. Yesterday its Constitutional Court threw out that law. English language press reports say that the court found it unconstitutional to give different-sex couples the option of registered partnership instead of marriage. Such an avenue, it said, "downgrades" in the institution of marriage. Apparently, if they rewrite the law to apply to same-sex couples only, it will not be unconstitutional.

Currently, the Netherlands is the only European country whose registered partnership law extends to both same-sex and different-sex couples. Netherlands also allows both types of couples to marry. Although it dates to 2005 and therefore is a bit behind, Dutch law professor Kees Waldijk's publication, More or Less Together, is an excellent resource on European law affecting same-sex couples.

I hate the Hungarian court's ruling. It is wrong on so many levels. The elevated status of marriage continues the wrong-headed notion that marriage is more important than all other relationships. Forcing different-sex couples to marry to obtain legal benefits and obligations maintains that elevated image. At the same time, the extension of a different option only for same-sex couples marks those relationships as inferior.

In another important way the Hungarian law was defective. It denied registered partners the right to adopt or to assisted reproduction. This follows the tradition in Europe of awarding rights to partners long before extending same-sex couples the right to parent, exactly the opposite of how LGBT family law developed in the US. I'm betting the Hungarian Constitutional Court isn't finding that exclusion unconstitutional!