ABSTRACT

INTRODUCTION

The right to family life has long been viewed as an important right in European human rights law scholarship. Article 8 of the European Convention on Human Rights (ECHR) recognises a right to respect for family life, and a large body of case law has expanded on both positive and negative obligations flowing from this right. The right to family life also appears in various guises in many national constitutions (to account for the various formulations, the umbrella term ‘right to family life’ is used here). However, since children were traditionally not seen as independent rights-holders, the right to family life across Europe tended to be asserted by parents in relation to their children and was therefore predominantly seen by courts as a right of parents rather than an independently held right of children.

Chapter 3 addresses the question of extending parental responsibility to social parents. Parental responsibility is an important mechanism through which to confer responsibilities and rights upon social parents. It is particularly useful in the context of same-sex parenting given that some gay and lesbian couples become parents in situations where the child was born to one of them as part of a previous heterosexual relationship. The extension of parental responsibility provides a mechanism whereby the partner or spouse of the parent can acquire responsibilities and rights towards the child in a manner that does not affect the status of the legal parents.

The Conclusion reviews the main arguments raised in the chapters, and it provides suggestions for future reform of the law in each of the comparator jurisdictions. The conclusions of the individual chapters are assessed to identify best practice in terms of the legal recognition and regulation of same-sex parenting which is not only of relevance to the countries under examination but to any of the 196 countries that have ratified the UNCRC.

Chapter 5 addresses the regulation of donor conception. This chapter examines how parentage should be allocated in situations where this procedure is used. The aim of the chapter is to identify a means of allocating parentage that is most in keeping with the best interests principle. The child’s right to identity and safeguards required to vindicate this right in cases of donor conception are also considered, as is the issue of access to services for gay and lesbian couples.

Chapter 4 examines the area of adoption law. The chapter argues that, from a children’s rights perspective, there is no logical basis for refusing to allow same-sex couples to access joint adoption and further that the best interests of the child may in fact demand that such access is made available. The suitability of adoption as a means to secure existing family relationships (so called ‘second parent adoption’) is also considered.

The Introduction sets out the central themes that arise in the chapters that follow. These themes form a common thread throughout the later chapters, providing a consistent structure for the arguments that are presented. The Introduction also provides an explanation of the terminology that is used throughout the work to describe various family forms. Parenting is multifaceted, and so this work does not attempt to address all aspects. Instead, the focus is on common pathways to parentage that are available to same-sex couples, and the analysis focuses on applying the best interests principle in each context. The final section of Introduction provides an overview of the chapter structure, which demonstrates the parameters of the research.

Chapter 6 examines the allocation of parentage in cases of surrogacy. The chapter seeks to identify a way to regulate surrogacy that adheres to the best interests principle and balances the interests and needs of all stakeholders in the process. It is suggested that an intention-based model of surrogacy, which is facilitated through a pre-conception allocation of parentage, satisfies the requirements of the best interests principle.

Chapter 1 examines the theoretical basis of the best interests principle. This chapter examines the implications and demands of the principle, and it explores how the principle is to be applied. In line with the guidance provided by the Committee on the Rights of the Child, the best interests principle is understood to be a right, the content of which is guided by reference to the other rights contained in the UNCRC. The advantage of this approach is that it allows the best interests principle to be realised in a structured manner, namely one that is guided by the UNCRC. The chapter provides further nuance to the best interests principle by identifying a new conceptual framework for its application. This framework is designed to overcome the perceived deficiencies of the principle. The framework not only is largely based on the guidance of the Committee, but also suggests that social science literature should be incorporated into the best interests assessment to provide broader guidance about what is ‘best’ for children in particular situations.

Chapter 2 analyses sociological and psychological research pertaining to same-sex parenting. This chapter builds onas it uses the relevant research to guide the application of the best interests principle. This research is used to inform the demands of the principle and to reduce the indeterminacy and subjectivity of decision-making as it relates to the children of gay and lesbian families. Existing sociological and psychological studies are assessed to determine whether children’s best interests can be served by same-sex parents and, consequently, whether legal recognition of these family relationships is desirable. This approach is also used to assess the application of specific laws in terms of their impact on the best interests of the child.