Monday, August 10, 2009

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.


Isaac said...

Spain, my country, is contradictory with respect to these rights. Zapatero's cabinet has modified the Civil Code in order to allow same-sex marriages and to grant them the same right as opposite-sex marriages with the highest legal rank under the Constitution, but these cabinet has also passed several laws written by the feminist lobby in a very heterosexist way. Whilst several sections of the Civil Code were rewritten by the same-sex marriage law in order to substitute spouses for husband and wife, a series of laws were written form scratch containing a lot of heterosexist language and norms. The situation is so bizarre that when a judge applies the equal-rights clause of the Civil Code to extend these feminist laws to lesbians, minister AĆ­do and her special delegate protest. So, lesbian couples have these rights in Spain only if married. In my opinion, Zapatero's cabinet never wanted to grant really equal rights to LGBT people, but to make noise and gather votes. In Spain unmarried couples are in a very precarious situation because of the pressure of Roman Catholic Church. We lack a national law of de facto partnership, and passing one would be sign of progress in Spain. Passing this same-sex marriage law whilst keeping unmarried couples in precarious is a sign of copycatting and infantile provocation to the conservatives, but not of real protection of right.

Nancy Polikoff said...

I completely agree that lack of recognition of unmarried couples is a problem. That is why I consider Australia such a good model...or Canada for the most part.

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