Controversial debates on the drafting of
the “Recommendation on the Rights and
Legal Status of Children and Parental Responsibilities”.
(Source: Gregor Puppinck, PhD, Director of the ECLJ, European Center for Law and Justice)
Between the 12th and the 14th
of October 2011, the European Committee
on Legal Co-operation (CDCJ) of the Council of Europe discussed a Draft
Recommendation by the Committee of Ministers on the Rights and Legal Status of
Children and Parental Responsibilities (see below the link to the document)..
The first draft recommendation was drawn up by the Committee of Experts on Family Law (CJ-FA), and was adopted on the
27th May 2011, under the supervision of British scholar Nigel Lowe. The text, as amended by the European Committee on Legal Co-operation (CDCJ), will be submitted, probably in the second half of November, to the Committee of Ministers for its further consideration and
discussion, potentially on some new amendments, followed by its definitive adoption. At the CDCJ, a strong debate has divided States regarding the natural
and moral foundations of the family.
The recommendation aims to define a number of new
common principles “updating” European Family Law to the social and scientific
changes that have occurred in the past decades in parts of Europe
in relation to family and procreation. The recommendation especially focuses on the establishment of affiliation in the context of unmarried couples and
medically assisted procreation, for both different and same-sex couples.
It puts the natural model of family and the new
relationships resulting from same-sex unions and artificial procreation on an
equal footing. As its explanatory memorandum concerning parenthood says, the
aim of the recommendation is to “provide a balance” between “the biological truth” and “social or psychological parenthood.”
Lastly, it presupposes the social and moral acceptability of same-sex unions, and of all medically assisted
procreation techniques, including surrogate motherhood, ignoring the very fact that most of those
practices and situations are illegal and contrary to the public order in the
majority of the member states. As such, the recommendation ultimately sends the
message that the Council of Europe recommends the legalisation of those
practices and obliges the member states to recognise them in their territory
when they concern foreign citizens.
Most of the debate, during the discussion
of the Draft Recommendation, focused on its core proposals, specifically principles 11, 12, and 17. Principles 11 and 12
proposed establishing a paternal affiliation for registered partnerships and
co-habiting different-sex couples, applying the paternal presumption in the
case of marriage. Principle 17 § 1, subsections b) and c), proposed establishing
a paternal affiliation for a man who is the registered partner or the
co-habiting partner of a woman whose child was conceived as a result of
medically assisted procreation. Principle 17 § 3 proposed establishing a
maternal affiliation for a woman who is the spouse, registered partner, or the
co-habiting partner of a mother whose child was conceived as a result of
medically assisted procreation. This principle intended to establish a
principle of automatic “parental affiliation”, without any assessment by the
national authorities as to the suitability of the registered or co-habiting
same-sex partner of the mother of the child, as is the case in establishing the
affiliation as a result of adoption.
Being a
non-binding instrument, the purpose of this Draft Recommendation is to create
soft-law and to highlight an “emerging consensus” within all the Member States
on these matters, including their moral
acceptability.
Because the European Court of Human Rights
(ECtHR) has not yet established principles on the matter,[1]
it is likely that this soft-law will progressively become “hard-law” through
the case-law of the Court. These jurisprudential principles are applicable to
all Member States. Often, the ECtHR has created or declared new obligations for
Member States, transforming soft-law into case-law. This occurred, for example,
in the cases Emonet and others v.
Switzerland[2]
(concerning adoption by the co-habiting partner of the mother) and Shalk and Kopf v. Austria[3]
(concerning access to marriage for a same-sex couple).
At least four applications pending before
the ECtHR
Currently, there are at least four
applications related to issues at stake in the Draft Recommendation pending
before the ECtHR. For the Court, the issues in each case are issues of first
impression, issues with which the Court has not previously addressed. While
deciding on the merits of these pending cases, the Court will take into account
the Draft Recommendation; thus, providing
the opportunity to start transforming the soft-law into case-law.
Here are the cases that the Court will
have to consider in the near future:
- X. and others v. Austria, (n° 19010/07), challenges
the impossibility of the same-sex partner of the mother of a child to adopt the
child, in accordance with national law;
- Valérie
GAS et Nathalie DUBOIS
v. France, (n° 25951/07),
challenges the impossibility of the same-sex partner of the mother of a child
conceived by medically assisted procreation to adopt the child, in accordance
with national law;
- Francine
BONNAUD et Patricia LECOQ
v. France, (n° 6190/11), challenges
the impossibility of the same-sex partner of the mother of a child to share
parental responsibilities for their child, which has been conceived by
medically assisted procreation, in accordance with national law;
- Stéphane CHAPIN et Bertrand
CHARPENTIER v. France, (n° 40183/07), challenges the impossibility of free access to marriage for same-sex couples in accordance with national law.
Some other applications concerning
artificial procreation are also pending, including the case Costa
and Pavan v. Italy (no 54270/10) and S.
H. v Austria (no 57813/00).
The timing
of those cases in relation to the adoption of the Recommendation is also
strategic. For instance, when the Court considered the case Shalk and Kopf v. Austria, the hearing occurred
immediately after the adoption of the recommendation on LGBT rights. Similarly,
the X. and others v. Austria case will be discussed by the Court on December 1st,
only a few days after the expected date of the definitive adoption of the recommendation by the Committee of Ministers..
The discussion of the Draft Recommendation
Between the
12th and the 14th of October 2011, the CDCJ discussed the
draft “Recommendation on the Rights and Legal Status of Children and Parental
Responsibilities” elaborated by the CJ-FA. The CDCJ is composed of a greater
number of States than the CJ-FA and includes the participation of
representatives of the Observer States at the Council of Europe (such as Canada, the Holy See, Japan, Mexico, and the United States of
America), and other participants (such as the Steering
Committee of the Council of Europe on Bioethics, the ECtHR, and some interested
NGOs).
The Holy-See
and the Russian Federation
made proposals to modify the most controversial provisions of the document,
including Principles 11, 12, and 17.
A number of States, including Armenia, Azerbaijan,
Malta, Moldova, Poland, Russia, Serbia, and Ukraine explicitly supported these
suggested modifications; other Eastern European Member States, however, did not
take a position. Still some Western States, lead by the Netherlands and Austria
(and including Belgium, Germany, UK,
Portugal, Greece, Norway,
and Finland),
were against the modification of the provisions and argued in favor of maintaining
the original text. Several NGOs played an important role in persevering
the natural and traditional, in particular 80 Russian and 10 Ukrainian NGOs[4] adopted a resolution that requested the Council of Europe respect
the natural and traditional family.
The most significant change that resulted from
these discussions was the withdrawal of Principle 17 § 3, which established a maternal
affiliation for a woman who is the spouse, registered partner, or a co-habiting
partner of a mother whose child was conceived as a result of medically assisted
procreation.[5]
Some reference to the discussion surrounding this change has been inserted into
the provision in the Explanatory Memorandum. The legal impact of Principles 11
and 12 concerning the presumption
of paternal affiliation to co-habiting couples and registered partnerships of different-sex
couples has also been limited.[6]
The main arguments
The main arguments supporting the amendment of the
original draft were the lack of consensus among the 47 Member States on those
issues which are illegal in the majority of Member States. It has been
highlighted that only a minority of Member States provide for “registered partnership”
status, and that fewer States confer an equal status to marriage and to
registered partnership or co-habitation of the same-sex couples, as well
as recognizing the establishment of parental affiliation and of parental rights
in those cases.[7] Significantly,
some states highlighted that a child has a right not to be voluntarily deprived of his
father. Therefore no State shall legalize situations aimed at creating a child without
a father. During these debates, the presentation of the Court’s case-law was also
rectified. The case-law recalled that according to the Convention, there is no
right to have a child as well as access to medically assisted procreation
techniques.[8] Nor
is there a right to have an equal legal recognition of the registered
partnership or co-habiting partnership of same-sex couples (as in the case of
the marriage of different-sex couples[9]). On the contrary, the ECtHR
case-law establishes that there is no obligation on a State to grant same-sex
couples access to a marriage, civil partnership, or to parental rights.[10] A
State is free not to legalize or recognize those claims.[11] Furthermore, to protect the
family based on marriage, the Court has recognized it is reasonable for a State
to establish a different legal status for a registered partnership as opposed
to a marriage.[12]
Regarding medically assisted procreation, the Court mentioned that this matter
raises issues of a “morally and ethically delicate nature”, that “there is no
uniform European approach in this field”, and “that the decision as to the
principles and policies to be applied in this sensitive field must primarily be
for each State to determine.”[13]
To reflect the above-mentioned
position of the Court, the Holy See proposed the introduction of a new
paragraph in the Preamble of the Draft Recommendation stating
clearly that “Member States are free not
to legalize, recognize or give effect to status accepted by another State, as
well as to reserve access to establishment of parental affiliation and
medically-assisted procreation techniques to different sex married couples or
to different sex couples whose relationship revealed a certain degree of
stability, according to the principle of the best interest of the child..” The proposal faced strong
opposition from some Western European delegations and could not be adopted.
In contrast, States wishing to keep the original text
principally argued that there is a necessity to create a text “for the future”,
and not to halt the “evolution” of families and legislation.. Some of these
States argued, but without a clear explanation, that the controversial
provisions of the recommendation were necessary from the point of view of the child.
Finally, the European
Committee on Legal Co-operation adopted the amended Draft Recommendation,
twenty-three voted in favor (Austria, Croatia, Czech Republic, Denmark,
Finland, France, Georgia, Germany, Greece, Ireland, Latvia, Lichtenstein,
Macedonia (FYRM), Moldova, the Netherlands, Norway, Portugal, Romania, Russian
Federation, Slovenia, Slovakia, Spain, Switzerland), two voted against (Italy
and Sweden), and eight abstained (Azerbaijan, Belgium, Hungary, Monaco, Poland,
Turkey, Ukraine and UK). After the vote, Norway,
Sweden, and the Netherlands
made observations declaring that they opposed the deletion of Principle 17 § 3.[14]
At the opposite, States
like Malta and Poland asserted
that the draft needs to be subject to further consultation by competent
national authorities. Nevertheless, Poland has underlined “that the
draft Recommendation still deals with some sensitive and controversial issues
that require further reflection”
In fact, the Draft Recommendation remains unsatisfactory
for most countries, as there is no consensus on the issues at hand. As
currently drafted, the Recommendation ignores important
issues,
including the preservation of the rights of the parents regarding their
children. The very notions of family, parents, and children are not defined
satisfactorily. The final version should also reassert that States are free not
to legalize same-sex unions and artificial procreation. The discussion will now
continue; Committee of Ministers will have to make a political decision,
preferably before the ECtHR decides on the pending cases.
Members of the
Parliamentarian Assemble of the Council of Europe, including Mr Luca Volontè, President of
the EPP Group, have expressed their concern and signaled that this Draft Recommendation is contrary to
Article15 of the Statute of the Council of Europe, as there is no common ground
for a common policy on this matter.
The text, as amended by the European Committee on Legal Co-operation (CDCJ), will be submitted, probably in the second half of November, to the Committee of Ministers for its further consideration and
discussion, potentially on some new amendments, followed by its definitive adoption. At the CDCJ, a strong debate has divided States regarding the natural
and moral foundations of the family. States wishing to preserve the family’s
moral and natural foundations have succeeded in countering the extreme positions
expressed in the first draft, as was initially expressed by the Committee of Experts on Family Law.
Discussions on the issue will now resume within the Committee of Ministers (i.e., at the political level of the
ambassadors).
The aim and the proposals of the Draft Recommendation
RELATED DOCUMENTS
- Meeting
Report of the 86th Plenary meeting of the European Committee on
Legal Co‑Operation (CDCJ), Strasbourg,
12-14 October 2011 - CDCJ (2011) 15 VERSION
FRANCAISE (the Draft recommendation and its draft
explanatory memorandum can be found in this Report)
ECHR case law:
* * *
[1] The ECtHR has decided only two cases on the matter: Evans v. United Kingdom, n° 6339/05, GC judgment of 10 April 2007, related to the withdrawal of consent by the applicant’s partner to use or preserve the embryos created by medically-assisted procreation, after the couple had separated; Dickson v. United Kingdom, n°44362/04, GC judgment of 4 December 2007, related to the authorization of a prisoner to have access to medically assisted procreation, as those techniques were permitted to others in the UK.
[2]
Emonet
and others v. Switzerland, n° 39051/03, judgment of
13 December 2007. “It is
true that Article 10 § 2 of the European Convention on the Adoption of Children
clearly states that all rights and obligations of the father or mother towards
their child cease to exist when the child is adopted. However, even on the
highly unlikely assumption that that Convention does apply to the present case,
the Court notes that only 18 Council of Europe member States have ratified
it and three signed it (situation on 1 July 2007). Furthermore, the draft
revised Convention stipulates that the law may provide for the spouse or
registered partner of the adopter to retain his or her rights and obligations
in respect of the adopted child if the latter is his or her child (Article 11 §
2 of the draft revised convention, see “Relevant domestic and international
law”, paragraph 25 above). The Court sees this as a sign of growing recognition
in the Council of Europe's Member States for adoptions such as that at the
origin of this case.” Id. §
84.
[3]
Shalk
and Kopf v. Austria, n°. 30141/04, June 24, 2010: “The Court cannot but note that there is an emerging European consensus
towards legal recognition of same-sex couples. Moreover, this tendency has
developed rapidly over the past decade. Nevertheless, there is not yet a
majority of States providing for legal recognition of same-sex couples. The
area in question must therefore still be regarded as one of evolving rights
with no established consensus, where States must also enjoy a margin of
appreciation in the timing of the introduction of legislative changes (see Courten, cited above; see also M.W. v. the United Kingdom
(dec.), no. 11313/02, 23 June 2009, both relating to the introduction of the
Civil Partnership Act in the United Kingdom).” Id. § 105.
[4] Resolution Approved at
the Public Hearing On October 4th, 2011 Saint-Petersburg,
Russian Federation. http://blog.profamilia.ru/wp-content/uploads/2011/10/Resolution-on-CJ-FA-GT3-2010-English-Final.pdf.
[5]
Principle
17 Medically-assisted procreation
1. States permitting medically assisted procreation procedures should
provide for appropriate rules for establishing parental affiliation. These
rules should, in particular, ensure that those concerned are adequately
informed and that the procedures are carried out only with their informed
consent. States may provide (in particular) that:
a. gamete or embryo donors are not
considered as the legal parents;
b. a man who is the spouse or (where permitted by national law) registered
partner of a woman whose child was conceived as a result of such a procedure is
considered as the legal father, unless it is established that he did not
consent to the procedure;
c. a man who is the co-habiting partner of a woman whose child was conceived as
a result of such a procedure is considered as the legal father provided both he
and the woman give written consent before or at the time of the procedure.
2. States where posthumous conception or embryo transfer is allowed
should provide that such conception or transfer may only be carried out with
the express consent of the persons concerned. In such cases the man or woman
concerned should be considered to be the legal parent although states may
provide for appropriate limitations of rights of succession.
DELETED : [3. Where states also permit same-sex marriages or same-sex
registered partnerships, they may provide that:
a. a woman who is the spouse or (where
permitted by national law) registered partner of the mother whose child was
conceived as a result of such a procedure is considered to be a legal parent,
unless it is established that she did not consent to the procedure;
b. a woman who is the co-habiting partner of the mother whose child was conceived as a result of such
a procedure is considered to be a legal parent provided both she and the mother
give written consent, before or at the time of the procedure.]
[6]
Principle
11 Application of presumption of paternal affiliation to registered
partnerships of different sex couples
Without prejudice of the legal position in other
states, States permitting different sex couples to
enter into registered partnerships are free to apply mutatis mutandis the presumptions contained in Principles 9 and 10
to the mother’s registered partner.
Principle 12 Application of presumption of paternal affiliation to
cohabiting different sex couples
States are free to apply mutatis mutandis the presumptions mentioned in Principles 9 and 10
to the mother’s cohabiting partner. This is without prejudice to the legal
position in states not choosing to apply them.
[7] From
47 member States of the Council of Europe, only seven States recognize same-sex
marriages: Belgium, Iceland, the Netherlands,
Norway, Portugal, Spain,
and Sweden.
Only fifteen States recognize same-sex registered partnerships: Andorra, Austria,
Belgium, Czech Republic,
Denmark, Finland, France,
Germany, Hungary, Ireland,
Luxembourg, Netherlands, Slovenia,
Switzerland, and UK. Only twelve
States recognize the same-sex cohabitation: Austria,
Croatia, Czech Republic,
Denmark, France, Germany,
Ireland, Netherlands, Norway,
Portugal, Sweden, and UK. Only twelve States allow
same-sex second parent adoption: Belgium,
Denmark, Finland, Germany,
Iceland, Netherlands, Norway,
Slovenia, Spain, Sweden,
and UK.
Only eight States allow same-sex joint adoption: Belgium,
Denmark, Iceland, Netherlands,
Norway, Spain, Sweden,
and UK.
Only nine States allow same-sex couples fertility treatment: Belgium, Denmark,
Finland, Iceland, Netherlands,
Norway, Spain, Sweden,
and UK.[8] The Court stated in Sijakova v. The Former Yugoslav Republic of Macedonia, n° 67914/01, decision of 6 March 2003, that neither the right to marry and to found a family, nor the right to private and family life or any other right guaranteed by the Convention imply a right to procreation.
[9] Manec v. France, n° 66686/09, decision of 21 September 2010, Shalk and Kopf v. Austria, n° 30141/04, judgment of 24 June 2010.
[10] Shalk and Kopf v. Austria § 63.
[11] Manec v. France, n° 66686/09, decision of 21 September 2010; Shalk and Kopf v. Austria, n° 30141/04, judgment of 24 June 2010.
[12] Manec v. France, n° 66686/09, decision of 21 September 2010.
[13] Evans v. United Kingdom, n° 6339/05, GC judgment of 10 April 2007, §§ 78, 79, 85 and 90; Dickson v. United Kingdom, n°44362/04, GC judgment of 4 December 2007, §§ 77 and 78.
[14] Norway has voted
in favour of the recommendation as a whole. However, it “regrets the weakening
of the draft recommendation on points that are intended to set standards, in
the best interest of the child, restricted to those countries that permit same
sex marriage or same sex partnerships, in particular Principle 17, paragraph 3,
concerning maternal affiliation” with the woman who is the spouse or cohabiting
partner of the woman who gave birth through artificial procreation. Netherlands supports the statement of the
Norwegian delegation. Sweden
is the most extreme State, explaining in its declaration that it “cannot accept
the deletion of the Principle 17, paragraph 3”. “For Sweden, it is evident that the
recommendation states which rights should apply also to children in member
states that offers medically-assisted procreation to same sex couples. We
cannot support that the recommendation does not cover the issue of which rights
these children have.”
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