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LGBT Rights in EU Member States

Same-sex marriages and homosexual adoption: this is of the Union legislates on new families

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LGBT rights, a two-class Europe

by Emanuele Coen

In 6 Member States out of 28, same-sex marriage is prohibited by the Constitution

The map of LGBT rights of rainbow families in the European Union is full of nuances. With two blocs marking the antipodes of the panorama: on one side, the Nordic States – Denmark, Sweden Finland – which have been the first to recognise the rights of LGBT couples enforcing laws approved by their respective Parliaments, without any need to resort to General Courts or Constitutional Courts judgments. On the opposite side, the Eastern States, among the latest to enter the EU-28: Bulgaria, Latvia, Lithuania, Poland, Romania, Slovakia, which do not recognise same-sex civil unions and that do not establish either any discipline or any protection of homo-parent/child relationships. In between, the States – France, the U.K., Spain, Portugal, Ireland, Luxembourg, the Netherlands and Belgium – that chose full equality in recent and less recent times. Italy introduced same-sex civil unions only in 2016 instead, with the Law no. 76, partially following experiences such as the Austrian or German ones, where the extension to adoption was made possible also with the interventions of Courts.

Gay marriage

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Sources: ILGA-Europe Rainbow Map, 2016; Research Department of the Senate, “Same-Sex Civil Unions or Marriages in some EU Member States”; December 2014; Cultura gay; European Parliament “The Impact of the Increasing Numbers of Same-Sex Marriages or Legally Recognized Partnerships on Other Legal Domains, Such as Property Rights and Divorce Law”, 2007

With regard to gay adoptions, the situation broadly reflects the direction taken by States on same-sex civil unions. Greater protection in Northern Europe and in the other States recognising civil unions, no rights in the former Eastern bloc. In Italy, in the absence of a law on joint adoptions or on stepchild adoptions (adoption of the partner’s child), the protection of rainbow families and of their children remains uneven and delegated to judges’ goodwill.

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Patricia De Melo Moreira - AFP - Getty Images

12 Member States do not allow same-sex couples to adopt

Since 2014, the Juvenile Court of Rome inaugurated a legal opinion, then materialised in some rulings, some of which became final, pursuant to which the adoption of the partner’s child in a same-sex couple has been recognised. This inclination was confirmed in May 2016 by the Court of Cassation. In February 2017, for the first time in Italy, a court (the Court of Appeals of Trento) recognised by order the non-biological link between two (Italian) fathers in a same-sex couple and the two twin children born in Canada with surrogacy, recognising the validity of the birth certificate of a foreign country which states the double paternity. Moreover, in March of the same year, the Juvenile Court of Florence for the first time in Italy recognised two joint adoptions to as many couples of fathers. An evolution not completely dissimilar to the German one, which passed a bill on civil unions in 2001, recognising in the following years co-parent adoptions (stepchild adoptions) and, pursuant to a sentence of the Federal Constitutional Tribunal, the subsequent adoption, that is the adoption of the child adopted by the partner. Joint adoptions remain precluded.

Gay adoption and stepchild

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Source: ILGA-Europe Rainbow Map, 2016; Legal advise by Angelo Schillaci, researcher in Public Law at La Sapienza University; Article 29, law portal on the matter of sexual orientation and gender identity