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International Human Rights Law does not recognise the right to marriage and form a family as a right in itself for same sex-couples. European Convention of Human Rights (“ECHR”) also does not provide for a general right to marriage and parental rights for same-sex couples. Article 12 of ECHR is a proof to that effect. It allows only men and women of marriageable age the right to marry and found a family.
The existing legal regime of ECHR and the European Court of Human Rights (“ECtHR”) case law principles do not provide same sex or LGBT couples access to marriage. ECtHR generally holds privilege of marriage as the criterion for parental rights. ECtHR leaves the discretion to the member states in regard to giving recognition to the relationship between same sex couples. As such, there is presumably a lack of applicable ECtHR case law principles that would extend to same sex couples a complete set of right to founding a family. This may result to discrimination for same sex couples.
Provisions of ECHR and rulings of ECtHR suggest that the privilege of marriage serves as a key factor in determining whether or not marital rights, including parental rights should be extended to same sex couple. This question is visited by ECtHR in many cases, including Rees v The United Kingdom, Cossey v The United Kingdom, or Schalk and Kopf v Austria. ECHR does not provide the right to marry to same sex-couples. Homosexual couples are placed differently from married heterosexual couples. The latter is treated as being the ideal model for suitable parenthood.
The ECtHR, in regard to marital rights and parental rights, is subject to the dominant discretion of the member states to determine parenthood of same sex couples and their rights to found a family. As such ECHR cannot be interpreted to impose on the member states to extend such rights to homosexual couples. In this light, this dissertation will analyse the ECHR laws and ECtHR case laws and the standards that they have set for family rights and parental rights for LGBT couples and families.
Italy is a signing member state of the ECHR. It is one of the countries where the protection of LBGT rights is low and is subject to considerable political controversy. Italy is generally a conservative society influenced by a conservative religious commitment. It decriminalised homosexuality in 1889 through the Zanardelli Penal Code. However, there have been various developments in regard to legally recognising same sex relationships.
This dissertation will explore Italy’s legislative and judicial efforts in addressing the issue of marital rights and parenting rights of same sex couple. Italy has seen the DICO bill of 2007 and CUS bill of July 2007, which aimed to regulate relationship of two cohabiting adults and the 2016 Cirinna bill, which recognised same sex couple relationship but excluded parental rights. It has passed the Law 76/2016 civil union law, which recognition of marital rights to same-sex couples but excluded step-child adoption and same-sex marriage. This dissertation will explore the developments in Italy, including the role of its domestic courts in order to determine whether or not Italy has bridged the gap left by ECtHR in terms of recognising marital rights, including parental rights. It will, therefore, assess the extent of legal reception in Italy of ECtHR case law principles governing protection of family and parental rights of LGBT individuals.
1. Whether or not civil rights of LGBT or same sex couples recognised by ECtHR include their parenting rights?
2. Whether or not ECtHR has left a gap in its existing enforcement of civil rights in regard to the parenting rights of LGBT or same sex couple?
3. Whether or not Italy has inherited the gap created by ECtHR or has been able to bridge the gaps?
Based on the research question, this dissertation will have, including this chapter, the following chapters:
Chapter 1 will provide an overview background of the ECtHR. It will present how the ECtHR have enforced rights of same-sex couples. This chapter will provide how ECHR rights relevant to same-sex couples have been included within the convention. It will refer ECtHR rulings in order to determine how the rulings have law included same-sex individuals under protection of ECHR. In this light, Chapter 1 will discussed Article 14 of ECHR, which prohibits discrimination, Article 8, which provides for right to private life and family life and Article 12, which provides for right to marry and found a family. This chapter will explore whether or not ECtHR has been able to enforce these ECHR rights of homosexual people.
Chapter 2 will focus on parental rights of same sex couples. It will explore whether or not ECtHR has been able to expand the civil rights of same sex couple to include parental rights. While doing do, this chapter will address this issue by discussing rights of homosexual people or couples in regard to adoption, medically-assisted procreation and surrogacy and other parental rights. This chapter wull discuss how ECtHR interprets and applies the “Best interest” principle in regard to parental rights of same sex couples.
Chapter 2 will further discuss ECtHR rulings to explore the extent to which it enforces anti-discrimination provisions ECHR regarding parental rights of same sex couple. It will examine the extent of discretion that member states possess while determining parental rights of same sex couples as against those of heterosexual couples. This will be done to examine if ECtHR has left any gap in enforcing the right to found a family, including parental rights of same sex couples.
Chapter 3 will further explore the findings of Chapter 2 in specific relevance to the position taken by Italy in respect to ECHR rights of same sex couple. This chapter will determine the extent of protection provided by Italy in terms of the general right of same sex couples to family life. It will discuss specific national legislation to that effect and its impact on rights of same sex couple. The Chapter will examine position taken up by the Italian judiciary, local authorities and the law making bodies. It will examine their stand on the right of same sex couple to marry.
Chapter 4 will conclude with a summary of findings of the chapters in this dissertation. It will conclude by comparing the position of ECtHR ruling and that of Italian government and judiciary in regard to enforcement of general ECHR rights of same sex couples and particularly the right to marry and found a family
The dissertation adopted a doctrinal methodology. This methodology involves research process of identifying, analysing and synthesising the contents of the law. It involved synthesising relevant elements.
This method was, therefore, applied as it helped in identifying, analysing and synthesising ECtHR rulings, applicable ECHR provisions, Italian judicial decisions and Italian laws. By using this method, the rulings of ECtHR are captured and presented in a categorical manner, which resulted in presenting ECtHR position in terms of the general rights of same sex couples and then to the core question of right to marry and founding a family.
Using this method, this research critically examined key interpretation of Articles 8, 12 and 14 by ECtHR and specific legislation and cases law of Italy. This research has met the objective of using this method. It has identified the correct legal provisions, which are Articles 8, 12 and 14 of ECHR and specific legislation of Italy. It also identified correct judicial judgments of ECtHR and Italian courts and analyse the content in a critical and interpretative manner.
Using this method, it helped this dissertation in organising relevant case laws and principles in a coherent manner along with the relevant concepts. This helped in understanding and comparing ECtHR rulings and legislative and judicial positions of Italy. It helped in answering the research questions of this dissertation of whether Italy is able to bridge the gaps left by ECtHR. This method differentiated legal principles and it helped identify popular practices with their rationales, such as the reason given by ECtHR and member states of why right to marry and found a family is not extended to same sex couples.
Thus, the method used in this research has enabled the researcher to examine multiple case laws and principles and arranged them in a coherent manner. This helped the researcher in identifying and finding relevance between legislative and judicial practices of ECtHR and Italian authorities.
Using this method, the researcher was able to apply interpretation and legal reasoning skills in order to evaluate legal rules on research question in hand. This method gave the advantages to help critically evaluate relevant legal rules and formulate legal recommendations accordingly in regard to the subject matter of research.
The Maastricht Treaty of November 1993 established the European Union. This treaty formulated the concept of European citizenship.
As an EU citizen, they have a right to private and family life. This right is enshrined under the European Convention on Human Rights, Article 8 that provides for right to respect for private and family life. According to Article 8, the right covers his private, family life including their home and correspondence, which cannot be interfered by any public authority. However, this Article allows legal interference, which is deemed necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This chapter will explore how the European Court of Human Rights (ECtHR) enforces the rights of same sex couples in relation to the right to private and family life and the extent of legal interference against such rights.
ECtHR rules on applications by individual or member states of ECHR on alleged violations of civil and political rights provided for in ECHR. ECtHR can issue judgments and advisory opinions. ECtHR, on many cases, have read Article 8 in conjunction with Article 14. Article 14 prohibits discrimination against the enjoyment of the rights and freedoms in ECHR based on “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
ECtHR through its decisions has tackled many cases against discriminatory state actions in respect to people of sexual minority. For instance, ECtHR, in Identoba and Others v Georgia, tackled violation of Article 3 (prohibition of inhuman or degrading treatment) in conjunction with Article 14 (prohibition of discrimination) by private individuals against sexual minority. In Aghdgomelashvili and Japaridze v Georgia, it tackled offence committed by the police who subjected LGBT people to physical and mental abuse. In O.M. v Hungary, it tackled issues regarding right to liberty and security (Article 5 of the ECHR) where the applicant was detained following his request for asylum because of his sexual orientation.
There are rulings of ECtHR that show that member states must not discriminate against same sex couples. The rulings also show that ECtHR enforces Article 14 in respect to the general prohibition of discrimination in respect the people from sexual minority. For instance, ECtHR in Mata Estevez v Spain held that differential in treatment is discriminatory and violates Article 14 in the absence of any objective and reasonable justification. In Karner v Austria, the court did not validate the argument that the aim of the legislation is protect the bond of marriage. The court granted the homosexual couples the right to succeed to a tenancy after the demise of a partner. However, in Aldeguer Tomás v Spain, ECtHR did not rule violation of Article 14 in conjunction with Article 1 of Protocol No. 1 and Article 8, ECHR when surviving partner of a same-sex couple could not obtain survivor’s pension on demise of the other partner.
ECtHR rulings may sometimes be found short of a general recognition of non discrimination against same-sex couples. The case of Aldeguer Tomás shows that EDCtHR recognises a certain level of inequalities imparted on same sex couples. This reasoning of the ruling in Aldeguer does not, however, provide any objective and reasonable justification for differential treatment, as was held in Mata Estevez v Spain.
In respect to the personal sphere as protected by Article 8, rulings of ECtHR have shown that elements such as gender identification, name, sexual orientation and sexual life are key elements of right to personal life protected by Article 8. The rulings demonstrate that ECtHR is active in protecting the rights of same sex couples to their private life.
Any legislation that criminalises sexual acts between consenting homosexuals violates Article 8. This was seen in Laskey and Others v The United Kingdom, where ECtHR ruled that not every sexual activity occurring behind closed doors necessarily falls within the scope of Article 8. ECtHR thus, ruled that prosecution for assault and wounding in the course of consensual sado-masochistic activities between adults did not violate Article 8 of the Convention as state’s interference was considered necessary in this case. However, ECtHR adopted a different approach to protect the private rights. The case of A.D.T. v United Kingdom concerned an applicant who is a practicing homosexual. The police seized various items including videotapes and photographs. The applicant was arrested and was charged with gross indecency between men for having found their conduct contrary to Section 13 of the Sexual Offences Act 1956. ECtHR Court observed that the applicant was prosecuted for activities depicted on the tapes. The prosecution was not for recording or risk of the tapes entering public domain. ECtHR ruled that the activities were private in nature and thus, the prosecution was not justified for purposes of protecting public health or morals. ECtHR found violation of Article 8. In the rulings of Laskey and A.D.T., ECtHR finds a objective and reasonable justification in the former and did not in the latter where private life of the applicant was protected.
ECtHR rulings enforce rights provided under ECHR against discrimination or rights to private life. The rulings enforce prohibition against conduct of inequalities by states against same sex couples. The later paragraphs will, however, assess whether or not ECtHR enforces rights of same sex couples under ECHR to family as it did with their private life.
Article 12 of ECHR states that “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right”. ECtHR rulings have differentiated the right to marry and the right to founding a family.
In the case of Schalk and Kopf v Austria which concerned the interpretation of Article 12 of ECHR, ECtHR ruled that a same-sex couple could enjoy “family life” just like a different-sex couple for the purposes of Article 8. Thus, if a cohabiting same-sex couple live in a stable de facto partnership, they are constituted to be having a “family life”. ECtHR, however, held that ECHR cannot be interpreted to govern a duty on states to extend marriage to homosexual couples. The rationale was that ECHR guarantees only to men and women the right to marry and found a family. Here, ECtHR was effective in recognising the family life right of same sex couple, but left the discretion to the states to determine whether or not same sex couples should have the right to found a family, and to marry.
In Rees v The United Kingdom, ECtHR held that the right to marry afforded by Article 12 is applicable to traditional marriage between persons of opposite biological sex. ECtHR opined that there should be not be any marriage where the people cannot have children biologically. This case ruling associated procreation and marriage. This case demonstrates that the right to marry is only given to opposite sexes, who could bear children biologically.
ECtHR employed the biological criteria to determine gender and to determine whether or not a couple could avail the right to marry. In the case of Cossey v The United Kingdom, ECtHR did not grant the right to marry to a transsexual couple. Cossey was registered a man at birth and later transitioned to a woman. ECtHR applied the biological criteria to determine a person’s sex in this case. However, later ECtHR removed biological criteria to determine gender. In Christine Goodwin V the United Kingdom, which concerned transsexual complainant, born a male, but transitioned to a female, ECtHR considered the changing social circumstance and held that Article 12 must not be interpreted to use biological criteria to determine gender.
The removal of the biological criteria to determine gender did not mean that the right to marry was extended to same sex coupled. In a recent case, ECtHR ruled that states can recognise relationship of same sex couples as a relationship of stable couples even when it may not extend the right to marry to same sex couple. This view was held in Vallianatos and others v Greece, by the Grand chamber of ECtHR, which observed that recognising such relationship is a component of private and family life. However, the Grand Chamber observed that there would be discrimination against same-sex couples when compared with different-sex couples in regard to their ability to get married or enter into civil partnership.
ECtHR rulings demonstrate the legitimate interest to afford marriage to same sex couple is left with the discretion of the states. States can give recognition to their relationship even if they are not afforded marriage. The rulings of ECtHR reflect an emerging EU consensus towards legally recognising union of same-sex couples. Rulings of ECtHR are testimony to this. In Schalk and Kopf v Austria, ECtHR ruled that same sex couples could enjoy “family life”. In Francesca ORLANDI and others v Italy, Italian authorities refused to register the complainants’ marriage that was contracted abroad. The complainants alleged that they faced the impossibility of obtaining legal recognition of their relationship. The Italian law did not permit marriage between persons of the same sex and also did not provide them any legal recognition. Majority decision of the ECtHR was that the failure imputable to the respondent State consists, not in the refusal of registration, but the failure on the part of Italian government to provide a specific framework that could recognise and protect same-sex unions. Such failure violated Article 8.
ECtHR rulings show that the right of a same sex couple to family life is recognised. However, the right to marry is left to the discretion of the member states. The exercise of state’s discretion could be seen in the case of Chapin and Charpentier v France. ECtHR questioned French courts' decision to annul the marriage between two French men contracted in 2004, which allegedly violated French law. ECtHR ruled that there was no violation of Article 12 or Article 8 taken together with Article 14. ECtHR reiterated its finding in Schalk by stating that Article 12 or Article 8 taken together with Article 14 cannot be interpreted to obligate a state to grant same-sex couples access to marriage. ECtHR noted that France has the Law of 17 May 2013, which has granted same-sex couples access to marriage. Also, in the case of Taddeucci, Taddeucci, a national of Italy, and McCall, a national of New Zealand, are a same-sex unmarried couple. They moved together to Italy in order to be close to family of Taddeucci. However, the Italian authority refused McCall a residency visa on the ground that McCall was not a spouse or a family member of an Italian citizen. ECtHR passed its judgment in 2016. For the first time, it takes into account that same-sex couples cannot get married under the relevant domestic law. It found violation of provisions of Article 14 in combination with Article 8 ECHR and held the refusal discriminatory as compared with the same rights afforded to different-sex spouses.
ECtHR 2020 guide on Article 8 provides it found violation of Article 14 taken together with Article 8 when legislation barred same-sex couples from entering into civil unions. ECtHR highlighted out of the 19 states which have authorised registered partnership other than marriage, only two states have reserved it such partnership exclusively to different-sex couples. According to this guide, one of the states is Greece, which has the 26 November 2008 Law no. 3719/2008, entitled “Reforms concerning the family, children and society”. This law recognises “civil unions” and its section 1 provides that such unions are exclusively available to two adults of different sex. The other state is Italy, which the ECtHR noted that its authorities failed to comply with obligation under Article 8 in order to create a specific legal framework for the applicants to recognise and protect their same-sex unions. ECtHR also noted that within 24 of the 47 member states of the Council of Europe have already enacted legislation that recognises same-sex couples and that afford them legal protection.
The rulings of ECtHR discussed in this chapter see two types of treatment by ECtHR: differential and equal. When it comes to Article 14, which prohibits discrimination, ECtHR enforces rights under ECHR equally as was seen in the case of Identoba and Others, Karner, Aghdgomelashvili and Japaridze Mata Estevez, or Aldeguer Tomás. However, ECtHR was sure of recognising the differential treatment between same sex couples and heterosexual couples, such as in the case of Aldeguer Tomás, when it comes to exercising rights that are available to heterosexual couples.
When it comes to Article 8, which provides for right to private and family life, ECtHR has adopted a balance approach. It gives recognition to the rights of same sex couple to their private life as was seen in the case of Laskey and Others or A.D.T. It also gives recognition to the right to family life or civil union, as was seen in the case of Schalk and Kopf , Vallianatos and others , or Francesca ORLANDI .
However ECtHR has not extended the right to marry to same sex couples, as was seen in the case of Rees or Cossey. The implementation and enforcement of this right is left with the discretion of the member states of the Council of Europe, as was seen in the case of Francesca ORLANDI. In this aspect, ECtHR does not effective enforce the rights provided under ECHR. This may be considered a differential, discriminatory or unequal treatment, unlike its equal treatment approach in respect to right to private and family life and prohibition of discrimination.
ECtHR has delivered over 10,000 judgments that are binding on concerned countries. The judgments have led state governments to amend their legislation and other administrative practices in a variety of areas. This statement of the ECtHR will assessed against its ruling concerning parental rights of same sex couple. ECHR, Article 8 provides that everyone has the right to private and family life. Article 8 also allows legal interference, which may be deemed necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. To the extent of the legal interference, this chapter will assess the position of ECtHR in regard to its enforcement of parental rights of the same sex couples.
Chapter 1 demonstrated that ECtHR rulings have not been able to enforce ECHR rights under Articles 8, 12 and 14 when it comes to the rights of same sex couple to marry. It adopted a differential, discriminatory or unequal treatment, unlike its equal treatment approach in respect to right to private and family life and prohibition of discrimination. Considering the findings of Chapter 1, it is worth exploring how ECtHR has dealt with parental rights of same sex couples when the basic right to marry is not extended to them.
Damian A Gonzalez Salzberg explored the legal and social consequences associated with the analyses of LGBT community and their human rights. Salzberg stated that ECtHR placed homosexual and unmarried heterosexual couples on the same position. However, ECtHR views homosexual couples different from a married heterosexual couples. The Court views married heterosexual couples as the ideal model and a suitable parenthood model. Salzberg stated that the Court applies the privileged character of marriage, which is a marriage between a men and women, to the area of economic benefits and also parental rights.
The view of ECtHR regarding the suitable model of parenthood is followed in ECtHR rulings. In the case of D and B v Austria (Dec), ECtHR highlighted that EU is deficient in a consensus amongst the member states in regard to parental rights of two mothers of a child born through assisted insemination. The case of Taddeuci and McCall also highlighted the issue of not extending any legal recognition to same sex couples in terms of their parental rights, except for other marital privileges such as residence permits.There seems to be a clear inability on the part of ECtHR to enforce prohibition of discrimination against the LGBT community where the laws and case laws principle regarding the right to get married and found a family is reserved only to couple of opposite sex.
Enforcement of parental rights by ECtHR is applicable to a limited sphere of ECHR. In Salgueiro da Silva Mouta v Portugal, the applicant, a homosexual living with another man, alleged violation by Portugal authorities of their obligations under ECHR, Article 8 alone and in conjunction with Article 14. He was prevented by his ex-wife from visiting his daughter violating the terms of the divorce agreement. The domestic courts ruled that its refusal was based on the fact that he was a homosexual and that his child should live in a traditional family. ECtHR invalidated the courts’ decision and held the act breached Article 14 in conjunction with Article 8.
The states’ determination of the extent of recognition of parental rights of same sex couple seems to be rooted to the discretion available to the state in regard to the right to family life, including right to marry. This leaves out ECtHR from imposing any obligation on the state to interpret relevant ECHR provision to afford same sex couples the right to marry or right to parenthood its decision and laws on the states in regard to the issue of parental rights. The cases discussed here are a testimony to this.
In order or determine the extent of enforcing parental rights of same sex couple, the section will explore the question of adoption, medically-assisted procreation, and surrogacy and other parental rights in respect to same sex couples.
The European Charter of Parents’ Rights, Principle 7 provides for the best interest of the child as the guiding principle of responsibilities in regard to education and guidance, which lies with the parents. Parents have the right and the responsibility to make all the decisions concerning their children. In context of this principle, Lydia Bracken explored the best interest principle applicable to children in adoption in regard to same-sex parents. She observed that that the ECtHR has interpreted and enforced the provision of Article 8 of ECHR to advance the rights of parents who are gay and lesbian and protect them from discrimination because of their sexual orientation.
Rulings of ECtHR, however, will demonstrate that the rulings prioritise the legitimate rights of the state in determining the best interest of the children. Such rights of the states override exercise of rights to adoption or second adoption by same sex couple or a partner in a same sex relationship.
ECtHR in the case of X and Others v Austria, held that Article 14 (prohibition of discrimination) read with Article 8 was breached by the provisions that excluded same sex couples from second-parent adoption process. In this case, the Austrian court refused two women live in a stable homosexual relationship to grant one of them the right to adopt the son of the other partner without severing legal ties of the mother’s with the child. The ECtHR held that ECHR did not oblige member states to extend right to second-parent adoption to the unmarried couples. Similarly, in case of Gas and Dubois v France, ECtHR held that there was no differential treatment based on sexual orientation between a same-sex couple and an unmarried different-sex couple. French law does not allow second-parent adoption to any unmarried couple, whether they are homosexual or heterosexual.
When it comes to a person from a sexual minority in his/her exercise of right to adopt, ECtHR gives recognition to the legitimate rights of the state to determine the capabilities of the applicants in raising a child. In Fretté v France, the applicant’s request for authorisation to adopt was dismissed and he was not even summoned to hearing. He alleged the dismissal arbitrarily interfered with his right to private and family life as the dismissal was exclusively based on unfavourable prejudice about his sexual orientation. ECtHR held that dismissal based on sexual orientation breached Article 14 read with Article 8. ECtHR ruled that the jurisdiction to consider the right to adopt is confined to the legitimate right of the state. The state has the right to consider that right to adopt is limited by the interest of the child, whether the applicants are eligible for adoption or not.
In E.B. v France, ECtHR held similar ruling when there was an alleged discrimination against the applicant in her application for authorisation to adopt. The applicant alleged such discriminatory treatment was based on her sexual orientation. The Court held that there had been a violation of Article 14 in conjunction with Article 8 of the Convention. The decision of the concerned domestic administrative authorities and then the court was based largely on the absence of paternal referent in the applicant’s household. There was no influence of her homosexuality in regard to the assessment of the application. However, it was observed that it had a decisive factor.
In the light of the cases heard by the ECtHR, Bracken observed that there has been a failure of the ECtHR to consider the rights and interest of the child adequately. The failure to recognise such rights may be based on the reasoning that if such consideration is allowed, it may open up the opportunity to jointly adopt to same-sex couples.
The non-recognition of the ability of sexual minority to adopt or raise a child is a reflection of the inequality practices. Such practices are subject to the root cause of the problem, which is the privilege of getting married. Basing decisions on sexual orientation amounts to discrimination. It is against the prohibition stipulated by ECHR and the state laws. The use of the exception of interest of the social is not justifiable in regard to treating sexual minority differently.
ECtHR does not seem to enforce the rights of same sex couple in regard to becoming de facto joint parents. For instance, in Gas and Dubois, the Court tackled a French legislation that allows donor insemination to heterosexual couples for purpose of therapeutics in order to remedy clinically diagnosed infertility or to prevent transmission of a particularly serious disease. As such, the Court held that this legislation did not violate ECHR when authorities refused the complainant to allow them donor insemination. Similarly, in the case of Bannaud and Lecop v France ECtHR rejected the application two women couple for joint exercise of parental responsibility. Each of the applicants had a child born through medically assisted procreation. ECtHR did not oppose the ruling of the domestic court and did not find any discrimination in that regard.
ECtHR does not seem to interfere in case there is a state legislation that addressing rights that affect same sex couples. For example, France has the 2013 “Mariage Pour Tous,” (Marriage for all). It excluded medically assisted procreation for lesbian couples. The enforcement of this law could be seen reflected in Charron and Merle-Montet v France. In this case, the request of a female married couple for medically assisted procreation was rejected as the domestic law did not permit. It was found to be inadmissible as they did not exhaust the domestic remedies. Such discrimination was allowed even when the anti-discrimination laws prohibit it.
Similar lack of legal protection could be seen in the right to parenthood through surrogacy. The lack of legal uniformity across states in regard to surrogacy may put people in uncertainty over whether they would be granted parenthood. A couple may become legal parents through surrogacy in another state. When they request their home state to recognise parenthood, they may find themselves in a cross border situation where a foreign or an international birth certificate may not be recognised. In Boeckel and Gessner-Boeckel v Germany, it was regarding refusal to register as a parent in the birth certificate of one of the partner’s child. ECtHR did not hold the applicants as married husband and wife and held that the refusal did not violate Article 14 in conjunction with Article 8.
In cases involving cross border surrogacy, the home states of same sex couples may not recognise them as parents, which will leave the child parentless and stateless. For example, in ParadisoCampanelli v Italy, the child was taken away from intended parents. The child was considered abandoned by the state of the same sex couples and was given up to someone else for adoption.
In the light of the above cases, it could be observed that despite making advance in dealing with discrimination against single gay and lesbian parents, ECtHR has not been active in recognising discrimination against same-sex couples in the area of joint parenting rights. This may be the reason why ECtHR has not been able to shape national and international consensus in regard to right to found a family or parental rights of same sex couples.
The case law developments of the ECtHR, as seen in Chapter 1, so far have suggested a few important progresses in its attempt to reduce inequalities against LGBT couples. From its earlier position of holding biological criteria in regard to right to marry to the new position of giving recognition to new social circumstance and interpreting Article 12 accordingly, ECtHR has come a long way.
ECtHR has recognised the right to private and family life in relationship to same sex couples. It holds the view that same sex couples should not be discriminated. Irrespective of the attempt of the ECtHR of recognising the ability of same sex couples to get married or enter into civil partnership, rulings of ECtHR seen so far are testimony to the fact that member states are deficient in a consensus to grant them parental rights.
ECtHR has recognised the issue of discrimination committed by member states against same sex couples without objective and reasonable justification. In terms of parenthood, the case rulings of ECtHR, as seen earlier, parenthood to same sex couples is extended when same sex couples could adopt their biological children and exercise other parental rights, as was seen in Salgueiro da Silva Mouta or X and Others. However, ECtHR has as not so far been able to extend parental rights to same sex couples in cases where there are no biological link between the child and them, such as in relation to joint adoption of children.
ECtHR has been bringing into public attention through its ruling the inequalities or discrimination faced by same sex couples in regard to their right to marry, family and parental rights. As an example, in the case of Salgueiro da Silva Mouta v Portugal, ECtHR ruled against the Lisbon Court of Appeal by stating that discrimination based on illegal ground was not in conformity with ECHR. In this case, the domestic legislation prevented a gay man living with his partner from visiting his child. The decision of the Lisbon Court of Appeal was based on the sexual orientation of the father. ECtHR ruling highlighted the prejudices as well as stereotypes attached to same sex couples affecting their parental and family life.
State courts may cite best interests of the child for their non-recognition of family and parental rights of same sex couples or of even single gays or lesbian parent. However, the courts did not attempt to balance the rights of the LGBT and LGBT couples. The states and domestic courts do not give recognition to the ability of single gay or lesbian parent to raise a child. This happened with Frette v Francewhere a gay person was prevented from adopting a child despite the fact that he possessed the necessary aptitude, personality and intellectual qualities of bringing up a child. ECtHR was not supportive of the person’s claim and it did not acknowledge the violation of right to private life. It based its stand on the lack of consensus amongst member states. However, ECtHR recognised discrimination against a gay woman in a stable same sex relationship when she was denied single parent adoption terming such denial against Articles 14 and 8 of ECHR.
The court rulings indicate that it is left to the discretion of the member states to determine rights of same sex couples or LGBT in regard to their private and family life, including parental rights. ECtHR is also restricted by the lack of consensus amongst member states. ECtHR rulings have recognised the right to family life when they recognised civil unions. However, they have not been able to enforce the right to marry or right to core parental rights such as adoption or joint parenting when it comes to same sex couple or people from sexual minority.
Chapter 1 demonstrated that ECtHR has not been able to extend the complete right to family right, in terms of right to marry. Chapter 2 demonstrated that ECtHR leaves to the states’ discretion to determine joint parental rights to same sex couples. ECtHR has left it to the discretion of member states to give recognition to relationship of same sex couples. The cases discussed in Chapter 1 and Chapter 2 demonstrated that ECtHR uses the privilege of marriage and biological criterion while determining parental rights.
As seen in Chapter 1, ECtHR leaves the gap in terms of its inability to enforce the right to marry in related to same sex couple. It has, however, recognised the rights of same sex couples to a family life.
There are two cases in the ECtHR that will demonstrate the relevant position undertaken by Italy. In OLIARI and A. against Italy and Gian Mario FELICETTI and others v Italy, the complainants were two same-sex couples. They alleged that Italian legislation did not permit them to get married or enter into a civil union. They alleged discrimination because of their sexual orientation. The complainants presented relevant Italian laws including Articles 2, 3 and 29 of the Italian Constitution. Article 2 provides for the state to protect inviolable human rights, including personality of individuals and there must not be any derogation. Article 3 provides for equality before law and equal social dignity with discrimination based on sex, race, religion, language, personal and social conditions and political opinion. Article 29 provides for the rights of the “family as a natural society founded on marriage”. It provides that marriage is based on moral and legal equality of spouses within the legal limits. The complainants alleged that irrespective of the rulings of the Italian Constitutional Court that same sex couples have a right to have their relationships recognised by law. Italy had failed to fulfill its obligation to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their union. ECtHR held that the Italian state violated Article 8 of ECHR and it did not examine the issue under Article 14 (prohibition of discrimination) in conjunction with Article 8.
Italian politics is strongly impacted by a conservative religious commitment. Nagy and Nothdurfter highlighted the issue of inequality faced by LGBT community in Italy. They observed that although Italy had long decriminalised homosexuality in 1889 by enacting the Zanardelli Penal Code governing equal age consent in regard to heterosexual and homosexual activity, Italy has been facing the issue of giving legal recognition to same sex relationships. This has resulted in lack of legal benefits in terms of taxation, pension, tenancy or property rights. The existence of inequalities against LGBT community and as such LGBT couples may be rooted in the kind of conservative society that is Italy.
Nagy and Nothdurfter highlighted the positive role played by the courts in granting rights to LGBT. For instance, they cited the instance of the Constitutional Court where it urged the Parliament in 2010 and 2013 to legislate recognising same sex couple. They also cited a case heard by the Court of Cassation in 2012. In this case, the complainants are Italian citizens, who got married in The Hague. The issue arose when they approached the Mayor of the Municipality of Latina for the transcript of the act of their marriage. The Mayor rejected their request as their marriage was formed abroad and cannot be transcripted holding it against public order. The Court of Appeal also rejected the request. The Court of Cassation ruled that refusal to register a same-sex marriage that was performed abroad did not violate the right to marry. It recognised the existence of a right to family life and to live free as a couple.
The Court of Cassation in this case ruled that same sex couple have access to the right to a family life just as the straight couple. The Constitutional Court ruled on same sex marriage that marriage is not inextricably linked to procreation. These cases, though, did not address the right to get married, but recognised the right to family life. In this light it could be observed that Italy and ECtHR are on equal footings in regard to extending to same sex couples the right to family life.
Marina Franchi and Giulia Selmi, while exploring the position of rights of same-sex in Italy observed that cities like Turin, Milan, Naples, etc have adopted a progressive stand considering the new modern social landscape For instance, authorities in these cities are reissuing birth certificates of children born to same sex couple adding the name of the parent who do not have any biological link with the child to extend full parental rights. Several juvenile courts have taken series of rulings governing stepchild adoption. These events demonstrate that the local authorities have been taking steps to close the gap in granting equality between straight and same sex parents.
Franchi and Selmi explored the challenges faced by same sex parents in Italy at the backdrop of the existing legal framework. They cited the February 2016 Cirinna bill. This bill granted legal recognition to non-married homosexual and heterosexual couples. However, it excluded parents who do not have any biological ties with the children from having any recognition of parenting rights.
Italy has been facing challenges against giving recognition to relationship between same sex couples. This could be demonstrated by the failure of the DICO bill of 2007 and CUS bill of July 2007, which attempted to regulate relationship of two cohabiting adults. Franchi and Selmi highlighted the view of LGBT advocates, who held these bills as a weak recognition of LGBT rights. Even the approved Cirinna law excluded same sex couples their parental rights, which would have granted them adoption rights. In the light of the circumstances surrounding these bills, Franchi and Selmi observed that Italy has been seeing two sides of the struggle in regard to recognition relationship between same sex couples. On one hand, there are the Conservative groups and Catholic Church, which aggressively oppose any legislation against homophobic hate crimes as against freedom of speech and expression. On the other hand, there are the local and regional governments, who play major roles in extending parental rights to same sex couple.
The legislative efforts undertaken by the Italian government could be stated to have not been at pace with the changing social circumstances. Given that homosexuality was decriminalised in 1889, Italy has been avoiding recognising rights of same sex couple to be married, found a family and exercise parental rights. This is demonstrated by the failed 2007 DICO and CUS bills and the 2016 Cirinna bill that excluded parental rights. Nagy and Nothdurfter explored how LGBT community faces public neglect and they negotiate their rights against the existing legal framework. They observed that LGBT community is subject to facing inequalities and the lack of legislative efforts adds to the degree of inequality. They observed that Italy just has the Legislative Decree 216/2003 that prohibits discrimination based on sexual orientation in employment. Even the Statute Law 164/1982 allows gender identity change after a medical surgery. There is no concrete legislative effort being made in regard to their right to founding a family and accessing parenting rights.
The legal regime of Italy regarding parental rights of same sex couple could be found mainly in the Law 76/2016 civil union law. This law, however, excluded, stepchild adoption and same-sex marriage. This law has provided recognition of marital rights to same-sex couples with many of the rights of marriage. This could be seen in the courts’ rulings. For instance, the highest court of Italy, Corte di Cassazionne, in its recent judgment, has extended to same sex couples the right to adopt the child of their partners. Such second-parent adoption satisfies the best interest of the children in such cases. The position regarding same sex marriage and step-child adoption is the same as that of ECtHR, which also did not extend the right of marriage and step-child adoption to same sex couples.
The Trento Court of Appeals, in its Ordinanza della Corte d’Appello di Trento dated 23 February 2017, gave recognition to parental rights of male same-sex partners. They were recognised as fathers of two children born with a surrogate mother and help of an egg donor in Canada by allowing transcriptions of birth certificates of the children. Judicial laws are giving parenthood a new perspective, which allows for two same sex couples to have a child together. In this light, Pasa and Morra further observed that this shift is based on the intention of the court to consider the best interest of the children and LGBT’s expectation to become parents. They observed that the civil union law 76/2016 does not include or exclude the possibility of either of the partners in a same sex relationship to create a legally binding relationship with the other partner’s biological child. Chapter 2 found that ECtHR left the discretion to the states to determine right of joint parenting through surrogacy. In this respect, it could be observed that Italy has enforced rights of ECHR in this respect by expanding the principle of best interest of the children to allow same sex couple to become parents through surrogacy.
Some cases are listed here to highlight the recent position undertaken by the judiciary. A Rome family court, on March 1, 2016 allowed a lesbian couple to simultaneously adopt each other’s daughters.The Guardian news channel reported that the juvenile court in Rome ruled that Marilena Grassadonia, president of the Rainbow Families association, could adopt her wife’s twin boys. Her partner was also allowed to adopt her son. All the three children were conceived by artificial insemination. These cases demonstrate that adoption or recognition as parents are granted by court when there is a biological connection of the same sex couple with the child. This position was not the case with ECtHR that left the jurisdiction to consider the right to adopt to the legitimate right of the state.
Irrespective of the recognition of parental rights, as seen in the case above, cases discussed here demonstrate that there is recognition of parental rights if only the biological relationship between the parents and the child exists. In the order of the Trento Court of Appeals mentioned earlier, the Court of Appeal ruled that the non-biological father of the children cannot be named as their legal parent. It ruled that only the biological father could be entered as the legal parent in Italy. The other partner will need to apply for special permission to be their adoptive father. Similar reasoning was held in the case of a gay Italian couple who used in vitro fertilisation to give birth to twin children in California. However, the Milan registry office refused transcription of the birth certificates, which denied them from registering the children as their legal children. The court ruled that each of the partners can register his biological son as his own, but the children will not be recognised as their children or considered as brothers. The cases shown here reflect similar observation with ECtHR rulings discussed in Chapter 2 that do not recognise joint parenting. The biological criterion is also followed by Italian court in recognising a person as a parent of a child.
In the light of the above observation, legislative efforts and court case ruling, it could be stated that Italy follows a general discriminatory approach against LGBT community when it comes to right to marriage and founding a family. Italy sees two competing practices, one driven by the conservative segment of the society and the other driven by the local government and authorities. The former creates barriers in bringing along appropriate legislation to regulate same sex couple relationship. The latter adopts practices that enforce rights of same sex couple. The interest of the competing stakeholders keep the LGBT experiences in a challenging path where on one hand there is embracing their relationship and on the other there is marginalization.
Considering the laws and cases discussed here from Italy and ECtHR rulings, both the set of legal regime do not give same sex or LGBT couple access to marriage. Both hold privilege of marriage as the criterion for parental rights. Even though, the regimes have, to a certain extent, recognised their relationship, the legal position so far have excluded LGBT couples the absolute right to parenting.
The case of Taddeucci or OLIARI involving Italy demonstrates the stand of the state machinery in regard to issues concerning family rights of same sex couples. The same sex couples are not given legal recognition as either a husband or wife or parent based on the sexual orientation. The right to marriage is also not extended to them, as is seen with the Law 76/2016. Italy thus follows a general discriminatory approach against LGBT community when it comes to right to marriage and founding a family.
The general discriminatory approach seems to be driven by the negative, conservative belief the Italian society holds. DiegoLasio and Francesco Serri explored how Italian public see same-sex civil unions and gay and lesbian parenting. They examined the attitudes and beliefs of educators in Italy regarding children raised by same-sex couples. They found that there are sexual prejudice, religious involvement as well as negative beliefs against two-father couples. This constitutes the significant individual and normative opposition to the issue of same-sex parenting. The individual form of opposition was found based in the political orientation and negative beliefs against two-mother couples. Italy seems to be struggling to give a social recognition to parenting abilities of same sex couple because of the social attitude against same sex couples.
As long as there is a lack of general consensus amongst the member state in regard to recognising the right of same sex couples to marry and to found a family, same sex couples will remain deprive of these ECHR rights.
This dissertation has explored the aspects of ECHR provisions and ECtHR case laws in related to their position regarding family rights and parental rights for LGBT couples and families. This dissertation has discussed ECtHR rulings in the enforcement of ECHR rights particularly Article 8 (private and family life), Article 12 (right to marry) and Article 14 (non-discrimination).
This dissertation has discussed ECtHR rulings in addressing whether or not civil rights of LGBT or same sex couples recognised by ECtHR include their parenting rights. Chapter 1 explored the background of ECtHR rulings. It has found that ECtHR had been enforcing the general rights, particularly Article 14 (non-discrimination), of same-sex couples or people belonging to sexual minority. ECtHR ruled against inhuman or degrading treatment Identoba; physical and mental abuse by police in Aghdgomelashvili and Japaridze; or against restriction on liberty and security in O.M. v Hungary. ECtHR has been active in addressing violation of ECHR rights of people from sexual minority based on their sexual orientation. ECtHR has also enforced other civil rights of same sex couples, such as Karner where homosexual couples were granted the right to succeed to a tenancy after the demise of a partner.
This dissertation, in Chapter 1, has also found that ECtHR has also been effective in enforcing ECHR Article 12, rights to private life of same sex couples. ECtHR ruled against act state act or legislation criminalising sexual acts between consenting homosexuals as violating Article 8. The rulings in Laskey and Others and A.D.T. are testimony to that effect.
In specific regard to right to family life under Article 12, ECtHR rulings show two separate positions. In the first position, rulings of ECtHR reflect an emerging EU consensus towards legally recognising union of same-sex couples. Support is found in the ECtHR rulings in Schalk and Kopf; Vallianatos and others; and the ECtHR 2020 guide on Article 8 also supports this view, except for Greece and Italy that do not recognise civil unions. ECtHR rulings recognised the rights of same sex couple to family life.
In the second position, however, the right to family is not extended to include right to marry. ECtHR seems to have adopted a strict interpretation of Article 12 of ECHR, which provides for only men and women to have the right to marry. Such interpretation is seen in the case of Rees and Cossey. In this area, ECtHR has left it to the jurisdiction of the member states to determine who has the right to marry. Chapin and Charpentier is an example. ECtHR, however, has recognised that the absence of a specific framework to deal with cases involving same sex couples is discriminatory in nature. This was seen in the case of Taddeucci.
When it is regarding Article 14 and right to private life, ECtHR enforces applicable ECHR rights of same sex couples and people belonging to sexual minority. When it is regarding right to family life, ECtHR sees a general consensus amongst member states of enforcing the right in the form of civil union. However, when it is regarding the right to marry, ECHR and ECtHR rulings do not give recognition to this right in relation to same sex couples. With specific regard to this right to marry, ECtHR has not been able to recognise the inequalities, discrimination and violation of ECHR.
When compared with the position in Italy, particularly the right to family life or civil union, Italy is short of providing a specific legal framework that provides for the recognition and protection of their union. Italy does not recognise same sex relationship. However, the judiciary is active in extending recognition of civil unions, as was seen with Constitutional Court recommendation in 2010 and 2013 and the case ruling of the Court of Cassation against Mayor of the Municipality of Latina refusal to register transcript of the act of applicants’ marriage. Law 76/2016 supports denial of right to civil union and same-sex marriage. Taddeucci and OLIARIare also examples of Italy’s position that same sex couples are not given legal recognition as either a husband or wife. In this regard, Italy follows a general discriminatory approach against LGBT community, whereas ECtHR rulings provide broader rights to same sex couples.
This dissertation has also discussed ECtHR rulings in addressing whether or not parenting rights of same sex couples are recognised and enforced by ECtHR. Chapter 2 has found that ECtHR views married heterosexual couples as the ideal model and a suitable parenthood model. This view is supported by ECtHR rulings in D and B, and Taddeuci and McCall.
States’ determination of the extent of recognition of parental rights of same sex couple bears a conservative outlook. ECtHR is found lacking in exercising its jurisdiction in this matter. Both ECtHR and member states recognise that a traditional family structure is the ideal family, as was seen in Salgueiro da Silva Mouta.
Based on the traditional approach, the rulings of ECtHR have limitedly enforced parental rights of same sex couples. ECtHR adopted this traditional approach in determining the best interest principle. ECtHR has prioritised the legitimate rights of the state, as was seen in X and Others and Gas and Dubois, which did not allow second-parent adoption to any unmarried couple, whether they are homosexual or heterosexual. States have the ultimate say in determining capabilities of applicants in raising a child. Non-consideration to rights and interest of the child seems to be based on reasoning that an otherwise ruling would opened up jointly adoption opportunity to same-sex couples.
ECtHR has not enforced rights of joint parenting to same sex couples, whether it is through medically assisted procreation, as seen in Bannaud and Lecop and Charron and Merle-Montet or through surrogacy as seen in Boeckel and Gessner-Boeckel. In this sphere, ECtHR has not been active in prohibiting discrimination and enforcing rights of same sex couple.
ECtHR has issued anti-discrimination rulings to secure rights of same sex couple against discrimination based on sexual orientation. However, ECtHR has not been able to secure complete parental rights of same sex couples. It limitedly enforce parental rights in the area of adoption when same sex couples could adopt their biological children and exercise other parental rights, as was seen in Salgueiro da Silva Mouta. Member states and ECtHR have not considered the ability of same sex couples or people from sexual minority to raise children. Chapter 2 has, thus, found a general lack of consensus amongst member states and also lack of ECtHR’s jurisdiction in enforcing parental rights of same sex couples,
ECtHR has left a gap in not enforcing parental rights of same sex couples. It has not been able to enforce their joint parenting rights. In this context, this dissertation explored whether or not Italy has inherited the gaps created by ECtHR or has been able to bridge the gaps. In Italy context, two sides emerged. The first one is the position taken by the judiciary and local authorities. The second is the position taken by the legislature.
The judiciary and local authorities provides for broader parental rights to same sex couple than did the Italian legislature and ECtHR rulings. In Chapter 3, it was found that cities like Turin, Milan, Naples, etc have discarded the biological link criterion in recognising same sex couples as legal parent in official documents. Even juvenile courts recognise the couples’ parenting rights in the form of stepchild adoption.
Unlike the judiciary and local authorities, the law making body is subservient to the position of the conservative segment of the Italian society, which do not approve relationship between same sex couples. The failure of DICO bill of 2007 and CUS bill of July 2007 and even the approved Cirinna bill that excluded parental rights are testimony to this. There is a general legal inequalities and lack of legislative efforts to address such inequalities.
Law 76/2016 could be considered the greatest example that reflects the conservative approach of the government. It excludes stepchild adoption and same-sex marriage. In this regard, Italy has not provided broader protection that what ECtHR did. However, it terms of recognising joint parenting through surrogacy, Italy has bridge the gap. ECtHR left the discretion to the states to determine this right. Italy has enforced ECHR rights, through Ordinanza della Corte d’Appello di Trento dated 23 February 2017, by expanding principle of best interest to allow same sex couple to become parents through surrogacy. In this respect, Italy has adopted a broader protection of same sex couples’ parenting rights. Despite the broader approach adopted by Italy, there is a limitation of recognising parental rights to the criterion of biological link. As such, a non-biological father cannot be named as legal parent of a child.
The core question of this dissertation about whether or not same sex couple will have the parental rights, both Italy and ECtHR have adopted a traditional approach. This dissertation has found that both ECtHR and Italy have not provided same sex couples a general right to marriage and parental rights. ECHR, Article 12 is a proof to that effect.
The findings of this dissertation suggest a prevalence of negative attitude of member states and their inability to accept diverse family configuration. This seems to be the main problem for the inequalities against same sex couples or people from sexual minority in terms of their right to family or parenthood.
Rulings of ECtHR seem to suggest that ECtHR has been active in its judicial steps to shape the consensus as amongst member states as well as influencing national laws in regard to protecting the parental rights of same sex couples. However, in special regard to parental rights of same sex couples, ECtHR is less proactive and seems reluctant to intrude into state’s discretion. The main criterion of marriage and biological criterion binds bind ECtHR and member states while determining parental rights of same sex couples. Thus, unless member states exercise its discretion in recognising the rights of same sex couple, including their parental rights, ECtHR will not be capable of enforcing the applicable ECHR rights of same sex couples.
Article 12 that provides the men and women have the right to marry. Until the words “men and women ” are removed and replaced them with a neutral language, as in Articles 8 and 14, deprivation in the form of non-recognition of capacity of same sex couples to marry or to parenthood will exists. ECtHR rulings and member states must find a consensus to remove this deprivation.
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