De bescherming van fundamentele rechten in een integrerend Europ

Waaldijk, C.

Leiden University Scholary Publications

Overview of Forms of Joint Legal ParentingAvailable to Same-Sex Couples in European CountriesKees WaaldijkLeiden Law School, Universiteit Leiden, PO Box 9520, 2300 RA Leiden, The Netherlands.<c.waaldijk@law.leidenuniv.nl>In the advancing legal recognition of same-sex partnership, access to forms ofparenting are often among the most controversial ones. This overview concerns thefour main forms of joint legal parenting. Other forms of parenting have been leftout of this overview, because of a lack of information regarding many countries.These other forms, not covered here, include individual adoption plus forms ofde facto parenting (fostering, insemination, surrogacy). The European Court ofHuman Rights has ruled that the French policy not to allow individual adoption bya gay or lesbian person amounts to a violation of the European Convention on Hu-man Rights (ECHR 22 January 2008, E.R. v. France, Application no 43546/02). Thisruling also affects other countries that do allow individual adoption. In most coun-tries, however, individual adoption (also when a heterosexual person is involved)does not happen frequently, or is not possible at all.European countries without any known form of joint legal parenting available tosame-sex couples have not been listed in this chart. These other countries can bedivided into two groups:- Countries that do recognise same-sex partnership, but that do not extend thisrecognition to any form of joint legal parenting: Andorra, Croatia, Czech Repub-lic, Hungary, Luxembourg, Portugal, Slovenia and Switzerland;- Countries with virtually no legal recognition of same-sex partnership: Ire-land, Italy, Liechtenstein, Malta, Poland, Slovakia and the remainder of Easternand South Eastern Europe.Depending on the country, the answers given in the chart below apply to mar-ried and/or registered and/or cohabiting couples.Droit et Societe 7212009 • 383This overview is based on:- Katharina BOELE-WOELKI, Ian CURRY-SUMNER, Miranda' JANSEN and WendySCHRAMA, Huwelijk ofgeregistreerd partnerschap? Evaluatie van de wet openstel-ling huwelijk en de wet geregistreerd partnerschap (Deventer: KIuwer, 2007);- Kees WAALDIJK, More or less together: Levels oflegal consequences ofmarriage,cohabitation and registered partnership for different-sex and same-sex partners.A comparative study of nine European Countries (Paris: INED, 2005; online athttp://hdl.handIe.net/ 1887/12585);- Kees WAALDIJK, Legal recognition ofhomosexual orientation in the countries ofthe world. A chronological overview with footnotes (paper presented at the con-ference 'The Global Arc of Justice - Sexual Orientation Law Around the World',Los Angeles, 11-14 March 2009; revised version to be published atwww.emmeijers.nl/waaldijk);- Various press reports, internet sources, and information from legal experts inseveral countries.Austria Yes, but 1 No No NoBelgium No Yes Yes NoDenmark No Yes,but 2 No 3 NoFinland Yes Yes 4 No NoFrance Yes No No NoGermany Yes 5 Yes No NoIceland Yes Yes,but 6 Yes Yes 7Netherlands Yes 8 Yes Yes 9 No but 10,Norway Yes but 11 Yes but 12 Yes 13 Yes 14, ,Spain No Yes Yes Yes 15Sweden Yes 16 Yes Yes Yes 17United Kingdom Yes Yes 18 Yes 19 Yes 20384 • Droit et Societe 7212009Notes1. In Austria, this is only possible if the other parent is dead. However, not only married different-sexstepparents but also unmarried and same-sex stepparents automatically have some social security andemployment rights with respect to the child of his or her partner (including health insurance cover, andcare leave if the child is sick). Furthermore, under pending legislation they will receive a few more rights(including representation in school matters and concerning day-to-day medical care).2. In Denmark, second-parent adoption by a same-sex partner is not possible if the first parent hasadopted the child from a foreign country.3. In Denmark, legislation is being prepared to allow same-sex couples to jointly adopt a child.4. In Finland, the relevant legislation enters into force on 1 September 2009.5. In Germany, the other (registered) partner has only limited responsibilities (kleines Sorgerechtl.6 In Iceland, second-parent adoption by a same-sex partner is not possible if the first parent has adoptedthe child from a foreign country.7. In Iceland, since 2006, if the child is the result of medically assisted fertilisation performed within thepublic health services, and the mother's female (cohabiting or registered) partner has agreed to the treat-ment, the latter will automatically receive the status of adoptive (second) mother of the child.8. In the Netherlands, any (married, registered or cohabiting) same-sex couple can petition the court tobe given joint parental authority and responsibilities over any child of one of them; this is so since 1 January1998. Furthermore, since 1 January 2002, if two women are married or registered as partners, and a child isborn to one of them during their marriage or registered partnership, they automatically obtain joint paren-tal authority and responsibilities.9. In the Netherlands, the exclusion of same-sex couples from intercountry adoption was lifted on 1January 2009.10. In the Netherlands, if the two women are married or registered as partners, they will automaticallyobtain joint parental authority and responsibilities over the child that is born during their marriage orregistered partnership; this is so since I January 2002. Currently the government is working out plans toallow the female spouse to become the second parent without having to go to court for an adoption.11. In Norway, this is only possible if the other parent is dead.12. In Norway, second-parent adoption by a same-sex partner is not possible if the first parent has adoptedthe child from a foreign country which does not allow same-sex couples to adopt.13. In Norway, joint adoption by a same-sex couple is possible since 1 January 2009.14. In Norway, since I January 2009, the mother's female (married, registered or cohabiting) partner willbecome the second mother of the child, but only if fertilisation has taken place in an approved health-carefacility in Norway or abroad, and the female partner has consented to the treatment, and the semen donor'sidentity is known.15. In Spain, if the child is the result of medically assisted fertilisation, the female spouse of the mother willbecome the legal parent, if that spouse has consented to becoming the legal parent.16. In Sweden, the other partner has only very limited responsibilities.17. In Sweden, if the child is the result of medically assisted fertilisation performed within the public healthservices, the female spouse of the mother will become the legal parent.18. In Scotland, legislation allowing such adoption is expected to enter into force in September 2009. InEngland and Wales such legislation is in force since 30 December 2005. In Northern Ireland, there is nosuch legislation yet, but it may be possible under case law.19. Idem.20. In the United Kingdom (except Northern Ireland), since 6 April 2009, if the child is the result of medi-cally assisted fertilisation, the female partner of the mother will become the second legal parent.Droit et Societe 7212009 • 385Droit et SocieteN° 72/2009Special ThemeThe FightAgainst Corruption: From International Unanimity to Domestic Prioritiesedited by Gilles Favarel-Garrigues275 IntroductionGilles Favarel-Garrigues285 The Blissful Conditions ofa Moral Crusade: Anti-Corruption Campaignsand Political Conflicts in Italy during the 1990sJean-Louis Briquet303 The Political Uses and Institutional Impact ofAnti-Corruption Policiesin Bulgaria: The Case ofToplofikacijaNadege Ragaru323 Political Effects ofAnti-Corruption Policies in PolandJer6me Heurtaux339 The FightAgainst Corruption in Morocco: Towards a Pluralizationofthe Modes ofGovernment?Beatrice Hibou. Mohamed TozyDebate IssueOn Issues Concerning Filiation Rights361 Biological 'Truth" vs. Homosexual Parenthood: The End ofthe LiberalConception ofFamily in France?Daniel Borrillo373 Between Family and Nation: The Naturalization ofFiliationEric Fassin383 Overview ofForms ofJoint Legal ParentingAvailable to Same-Sex Couples in European CountriesKees WaaldijkDroit et Societe 7212009 • 267N° 72/2009DossierLa lutte anticorruption, de l'unanimisme international aux priorites interieurescoordonne par Gilles Favarel-Garrigues275 PresentationGilIes Favarel-Garrigues285 Les conditions deJeHicite d'une croisade morale.Lutte anticorruption et conflits politiques dans I'Italie des anm?es 1990Jean-Louis Briquet303 Usages et force instituante de la lutte anticorruption en Bulgarie :l'affaire ToplofikacijaNadege Ragaru323 Les effets politiques de la lutte anticorruption en PologneJer6me Heurtaux339 La lutte contre la corruption au Maroc :vers une pluralisation des modes de gouvernement ?Beatrice Hibou, Mohamed TozyQuestion en debatDes enjeux du droit de la filiation361 La verite biologique contre l'homoparentalite :le statut du beau-parent ou le « PaCS de la filiation»Daniel Borrillo373 Entre fa mille et nation: la filiation naturaliseeEric Fassin383 Overview ofForms ofJoint Legal ParentingAvailable to Same-Sex Couples in European CountriesKees WaaldijkDroit et Societe 72/2009 • 265

Overview of Forms of Joint Legal Parenting Available to Same-Sex Couples in European Countries

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Overview of Forms of Joint Legal Parenting Available to Same-Sex Couples in European Countries

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