LGBTI DISCRIMINATION AND PARENT-CHILD RELATIONSHIP:

CROSS BORDER MOBILITY OF RAINBOW FAMILIES IN THE EUROPEAN UNION

By Elena FallettiUniversità Cattaneo – Liuc

(Italy)

Rainbow families

Adoption

- Simple

- Joint

- Step-parenting

- Second parent Assisted Reproductive Technology Surrogacy

National Legal Regulations in 27 EU Member States

18 EU Member States have no explicit provision on access to in IVF and on adoption (Joint or second parent)

6 EU Member States treat equally heterosexuals and homosexuals couples

4 EU Member States regulate altruistic surrogacy 1 EU Member States recognize IVF and second

parent adoption 1 EU Member State recognizes only second parent

adoption

EU Law

Charter of Fundamental Rights of the European Union

Free Movement Directive (Directive 2004/38/EC)

Family Reunification Directive (Directive 2003/86/EC)

Qualification Directive (Directive 2011/95/EU) Regulation Brussels II (Council Regulation EC

n. 2201/2003

European Case Law

European Court of Justice

(Luxembourg Court)

- Article 21 + Articles 7 and 9 of the Charter of Fundamental Rights of the European Union

European Court of Human Rights:

(Strasbourg Court)

- Non discrimination – Best interest of the child – Family life

National law / 1

Surrogacy

- Belgium, Belgian homosexual parents / Ukraine surrogate mother

- France, French homosexual parents / American surrogate mother

- England, Belgian and English homosexual parents / India surrogate mother

National law / 2

In Vitro Fertilization

- Germany, German lesbian couple / anonymous sperm donation in Denmark

Connection with second parent adoption

National law / 3

Joint adoption

- Slovenia, US and slovenian homosexuals couple adopted in New Jersey a US girl

- Landmark decision of Slovenian Supreme Court

- France, French and English homosexuals couple adopted a boy

- Adoption recognized by the Cour d'Appel de Paris, rejected by the Cour de Cassation

National law / 4

Second Parent Adoption

- France, Franco-Finnish lesbian couple registered in a PACS, two children

- Germany, Bulgaria, Romania. Two homosexual people claimed for the second parent adoption of their partner's child.

- Bundesverfassungsgericht, “The unequal treatment of the children in relation to adopted children of spouses is not justified”

National case law / 5

Second parent adoption

- The Netherland, Belgium, Denmark. Adoption of unborn child

Work in progress, reforming marriage national laws

- France, Marriage pour tous

- United Kingdom, Marriage (Same Sex Couples) Bill

Thank you for your kind attention!

Any questions?