In its decision No. 1099/2023, the Supreme Court of Greece overturned a decision of the Athens Court of Appeal, which rejected the recognition of a South African court’s decision designating a male couple as parents of a child born to a surrogate mother as contrary to Greek public policy. The judgment upheld the ground of appeal on the ground of failure to state a factual claim and held in particular that the error in the judgment was that it stated as a ground for non-recognition that the adoption of a minor in Greece is not permitted to same-sex couples, not taking into account that in the present case it was a specific child born to a specific family from a surrogate mother, and not in the abstract a minor whose suitable family for adoption must be found. This is an unprecedented decision on the recognition of families of persons of the same sex in Greece, which reopens the discussion of the merits of the case in the Court of Appeal.

The case, in the context of which the judgment was delivered, is as follows:

Alexandros, of Greek nationality, and Markos, of American nationality (not their real names) entered into a civil partnership before a Greek notary in 2016, during the period in which they resided in a country outside the European Union. In the same year they drew up a surrogacy agreement with a heterosexual couple in that country, which was ratified by a court decision, and which stipulated that the child or children born in the future to the surrogate mother would be the joint children of the two partners. In 2017, a boy was born to the surrogate following artificial insemination. The boy has been baptized an Orthodox Christian and bears a surname resulting from the combination of the surnames of his two parents. On the birth certificate drawn up in accordance with the law of the child’s country of birth, the child is listed as the joint child of Alexander and Mark (who are marked ‘parent B’ and ‘parent A’ respectively).

In July 2018, the family moved, in the course of Alexander’s professional duties (who is a public official representing Greece abroad) to a country of the Union where he was legally recognized as a family.

The problems for the family began when Alexander requested, on the basis of the birth certificate drawn up in accordance with the law of the child’s country of birth, that his son be registered at the Special Registry in Athens. The child’s registration was refused on the ground that the parents are a same-sex couple.

As a result, the parents appealed to the Athens Court of First Instance, requesting the recognition of the validity of the foreign court’s decision so that their son would have the legal status of their common child in Greece. Their request was rejected and, subsequently, the parents appealed against the above judgment, which was rejected by the Athens Court of Appeal, and again brought cassation an appeal before the Supreme Court.

Both the decision of the court of First Instance and the Court of Appeal based the rejection of the application of the same-sex parents on the legal concept of opposition to public order, which is a negative condition for the recognition of a foreign decision in the Greek legal order. The courts considered that the failure to provide for a corresponding possibility of a same-sex couple having children together in Greek legislation constitutes proof that the recognition of such a family in Greece, even though the family has already been created abroad and in accordance with the legislation of the foreign state, is contrary to the prevailing mores of Greek society and the public policy of that society.

However, the fact that Greece does not provide in its legislation for a particular institution does not mean that this institution is fundamentally contrary to its public order (its prevailing, let us say, moral and social concepts) and therefore impossible to recognize. What matters is, in short, to consider the consequences that recognition or non-recognition will have on our legal order. In this context, non-recognition means that the child of a particular family is left exposed and not that in the abstract, for example, adoption or having a child through surrogacy is allowed to same-sex couples. In this light, it would seem to be contrary to our public policy and the need to protect the best interests of the child to not recognize the familial relationship. As the decision of the Court of Appeal of Thessaloniki (no. 159/2022) has now recently held “the model of the family, whose composition of its members is different from the established ones, does not challenge the dominant social perceptions because ultimately this difference cannot be to the detriment of the real interest of the child, while Greek society is now sufficiently prepared to face and manage such situations and sufficiently progressive to accommodate harmoniously within its ranks and to tolerate”.

By accepting a “typical” ground of appeal, the Supreme Court avoids answering a key issue for same-sex families living abroad and the debate on homosexuality in general. However, the fact that the debate remains “open” and does not end with a negative admission, judicially equivalent to the homophobia of Greek society, is already a step in the right direction.

If you are interested about the case, you can also read in the “Kathimerini” newspaper Marianna’s Kakaounaki article titled “In Europe we are family. Here nothing”.

https://www.kathimerini.gr/society/562736410/stin-eyropi-eimaste-oikogeneia-edo-tipota/