Debate: The Rights of children in Rainbow Families and same sex parents in particular in Italy
Date: WEDNESDAY, 29 MARCH 2023
Speaker: Helena Dalli
Language: EN

Indeed, equality and non-discrimination are core values and fundamental rights in the Union. To achieve this objective, in 2020, the Commission adopted the first-ever strategy on LGBTIQ equality. This strategy aims to build a Union where LGBTIQ people, in all their diversity, are safe and have equal opportunities to participate fully in society and thus reach their full potential. This includes equal opportunities and rights of children with same-sex parents. Under the United Nations Convention on the Rights of the Child of 1989, Member States must respect the rights of the child without discrimination of any kind and take all appropriate measures to ensure that the child is protected against all forms of discrimination or sanctions based on the situation of his or her parents. Equally, under the EU Treaties and the EU Charter of Fundamental Rights, all children have the same rights without discrimination, that is, irrespective of how children were conceived or born and irrespective of the type of family. When applying their national law, Member States must respect their obligations under international law. When applying Union law, Member States must respect the EU Treaties and the EU Charter of Fundamental Rights, and it is the duty of the Union and of every Member State to protect these rights. This means that in the Union, children who have same-sex parents are entitled to exactly the same rights as any or other children, and that these rights should be respected and protected by both the Union and the Member States. It is common ground that under the EU Treaties, substantive family law falls within the competence of the Member States. Member States can therefore decide whether, under their national law, a child can have same-sex parents. However, it is equally clear that under the EU Treaties, the Union can propose and adopt measures on family law with cross-border implications. This legislation, based on mutual trust between Member States, aims to protect the rights of citizens and to facilitate the exercise of their right to free movement. EU legislation can therefore require a Member State to recognise the parenthood of a child as established in another Member State, and that in order to avoid discriminating against certain categories of children, this obligation applies also as regards children who have same-sex parents. In fact, already today Member States are required, under Union law on free movement, to recognise the parenthood of a child with same-sex parents, as established in another Member State for the purposes of rights under Union law, such as the right to enter or reside in another Member State. This obligation on Member States was confirmed by the Court of Justice in December 2021 in the VMA case: a case concerning a child with two mothers. In addition, under the EU Treaties, the Union has competence to propose and adopt legislation requiring Member States to recognise the parenthood of a child with same-sex parents also for the purposes of rights under national law, such as the right of a child to inheritance, to maintenance and to be legally represented in another Member State on matters such as health and schooling. Accordingly, in 2020, President von der Leyen committed to ensure that the parenthood established in a Member State would be recognised in all other Member States. Implementing this political commitment, in December 2022, the Commission adopted a proposal on the recognition of parenthood between Member States. The aim of this proposal is to ensure that the fundamental rights of children, such as the right to an identity and to a private and family life, and their rights under national law, such as the right to inheritance, maintenance and legal representation, are respected and protected in cross-border situations within the Union. The obligation on Member States to recognise the parenthood of a child as established in another Member State would apply without discrimination against any category of children. This means that it would apply irrespective of how children are conceived or born, irrespective of their nationality and irrespective of their type of family, therefore including the parenthood of children with same-sex parents. The Commission proposal on the recognition of parenthood between Member States is an instrument of private international law. This means that it does not interfere with any competence of Member States as to how they define family under their national law. The proposal only applies in cross-border situations. It aims to facilitate the recognition of parenthood between Member States in order to guarantee the continuity of parenthood across borders, the rights of children across borders, and to ensure that children’s right to free movement is not deterred by the fear that parenthood will not be recognised in another Member State. The proposal would achieve those aims by harmonising rules applicable only in cross-border situations, namely rules determining which Member States’ courts are competent to establish parenthood; rules determining which national law should apply to establish parenthood in a cross-border situation; rules providing how a document establishing or providing parenthood in a Member State should be recognised in another Member State; and rules creating a European certificate of parenthood that citizens can use to prove parenthood in another Member State. I should note that the same type of measures have already been adopted by the EU legislator in other areas of family law with cross-border implications. As a second point, I point out that the Commission proposal does not require Member States to recognise parenthood established in a third country. This means that the recognition of the parenthood of a child would remain subject to the recognition rules of each Member State if the parenthood has been established by a third country. The Commission’s proposal only covers the binding recognition of parenthood established by the authorities of a Member State. I note that the mutual trust between Member States on which the Commission proposal relies is based on the fact that all Member States are required to protect the rights of children, not only under the EU Treaties and the EU Charter of Fundamental Rights, but also under international law, including the UN Convention on the Rights of the Child, the European Convention on Human Rights and the case-law of the European Court of Human Rights, all of which require Member States to protect the rights of children without any kind of discrimination and therefore including children with same-sex parents.