In the new issue of Civil Law and Civil Procedure Applications (EFAPOLD, 7/2024, pp. 640 – 643) my study on the possibilities of applying the presumption of paternity after the introduction of marriage equality has been published. You can read more here.

This article examines the relationship between the new law on equality in civil marriage and the so-called “presumption of parenthood” and in particular the possibility of applying articles 1465 et seq. CC to relationships between persons of the same sex in accordance with the long-standing demand of the LGBT+ community. By examining at the same time the way of establishing kinship and the possibility of applying the presumption by analogy in the case of transgender parents and in particular transgender men giving birth (the phenomenon of ‘seahorse fatherhood’), the article concludes that there is a need to extend the presumption or to provide for a new mechanism for establishing kinship in the various cases of LGBTI families

The enactment of Law 5089/2024 on equality in civil marriage has changed the landscape of family law in our country, radically on the one hand, but elliptically on the other: a simple amendment to article 1350 of the Civil Code on persons capable of contracting marriage has resulted in the reform of the law of kinship and therefore of a series of legal relationships, although the law itself is silent on the matter. It therefore remains for the interpreter and practitioner of the law to examine, given the silence of the legislature, what the real impact of the reform is on the body of law.

This article examines the relationship between the new law and the so-called “presumption of parenthood” and, in particular, the possibility of applying Articles 1465 et seq. CC to relations between persons of the same sex in accordance with the long-standing demand of the LGBTI community. The article also examines how kinship is established and the possibility of applying the presumption proportionally in the case of transgender parents and in particular the transgender man who gives birth within the framework of marriage or civil partnership (the phenomenon of “seahorse fatherhood”). It should also be noted that this reflects some of the very interesting reflections and discussion that took place at the Family Law Society’s workshop on Equality in Civil Marriage on 11.03.2024.

Towards the creation of a presumption of parenthood.

According to Article 1465 of the CC “A child born during the mother’s marriage or within three hundred days of its dissolution or annulment is presumed to be fathered by the mother’s husband (child born in marriage); a child born in marriage is also considered a child born after post mortem artificial insemination, provided that there  the court permission required under Article 1457. If the child was born after the 300th day after the dissolution or annulment of the marriage, the burden of proving the paternity of the spouse shall lie with the person claiming it. The same shall apply where artificial insemination took place after the death of the spouse, despite the absence of judicial authorization”.

Apart from the relevant provision for the case of post-mortem artificial insemination, both this article and the following articles (1466 to 1472), as is obvious from the letter of their provisions, reflect the usual relations of biological relevance for the authors of the Civil Code and the, admittedly rather unknown to them, concept of the “heteronormative model” of relations. In other words, the article answers the question “who is the father?” of the child born in principle within the marriage, while defending the idea of family order associated with this institution (as is also clear from the relevant provisions on the need to challenge paternity in court and the subordination of biological truth to the protection of the family already established). However, the introduction of the presumption already refers to a time when it was not easy to establish biological truth (before DNA tests, etc.), hence the need for a presumption.

The question that arises is whether this presumption can be applied in the case of the relations of same-sex couples and children that may be born of them within the marriage or cohabitation agreement of Law no. 4356/2015.

Both the absence of a relevant provision in the letter of 5089/2024 and the relevant suggestions made by the competent bodies during the consultation of the bill regarding the need to extend the presumption of paternity or otherwise “convert” it into a presumption of parenthood, suggest that such a possibility does not exist at the moment. However, apart from the historical interpretation, is this possibility ruled out on the basis of a teleological interpretation and, in particular, the way in which the regulation may ultimately be interpreted in the future, in accordance with the development of the customs and needs of Greek society?

Regarding the de lege lata impossibility of applying the presumption.

Already the way in which the presumption of paternity has been extended in the case of Law no. 4356/2015 on the civil partnership agreement argues in favour of the impossibility of applying a general presumption of parenthood. The presumption shall be rebutted by an irrevocable court decision. Articles 1466 et seq. CC, as well as Articles 614 et seq. CCC, shall apply accordingly. The reference is clearly made to a male father and mother (apparently a biological woman who gives birth to the child), with the result that same-sex couples are legally precluded from having a child in common because of their birth within the regime of the civil partnership.

Similarly, it has so far been accepted that voluntary recognition as an institution only concerns the establishment of kinship with the male partner of the mother, as a result it is argued that the acquisition of a legally common child by same-sex couples through ART methods is excluded, in particular by a declaration of voluntary recognition by the partner of the woman who conceives the child alone in accordance with Article 1456 of the Civil Code.

However, already after the adoption of Law no. 4491/2017 on the legal recognition of gender identity, the concepts of father and mother are not as “self-evident” neither legally nor socially. An example is the aforementioned phenomenon of “seahorse fatherhood”, which is discussed in detail in the next chapter.

Furthermore, and without having to legally challenge the ‘biology’, following the passing of the Marriage Equality Act, same-sex couples are not in fact completely excluded from having recourse to ART, as was the case under the previous legislative regime. The possibility for same-sex couples to use the institution of adoption has the effect that only a homosexual woman, who is unable to have a child through natural means and can therefore have a child through ART, can, in the case of a subsequent marriage, consent to the adoption of this child by her partner, so that it is treated as their child. In essence, the law leaves the possibility for same-sex women to resort to a formation which may lead to the acquisition of a common child, biologically related to one of them

In the light of this possibility, it is already argued in theory that the requirement that the medically assisted woman be unmarried should be abandoned, as the practice to which the regulation had led in the past, i.e. a couple of women who have entered into a civil partnership, dissolve the partnership, proceed to have a child under the above provision, and then re-enter into a civil partnership, is practically and legally incompatible with the institution of marriage (let us imagine this paradox: Same-sex spouses wishing to have a child together, being forced to divorce so that one of them can undergo ART with genetic material from an unknown donor, and then remarrying so that the spouse of the biological mother can adopt the child of the first one ).

How could it be held in this context that it is contrary to the will of the legislator for one of the two same-sex spouses to be able to resort to the assistance of ART, with the consent of her spouse provided by private agreement, and for the child born to be considered to be the child of the latter by virtue of a presumption of parenthood, as is the case in heterosexual couples , without the need for further proceedings for the successive adoption of the child?

How kinship is established in the case of transgender parents and the phenomenon of “Seahorse Fatherhood”.

The case of transgender parents who have children within the context of marriage or civil partnership is different. It is accepted in this respect that a bi-sexual woman has a right of recourse to the ART. As underlined in theorey “Greek legislation does not appear to place any obstacle in the way of transsexual women having recourse to medical assistance. The medical impossibility is not excluded (on the basis of the letter of the law) from being epigenetic, while the interest of the child is not considered to be in question in this case (since the person acquires the external characteristics of the new sex).” It should of course be noted that transgender people are not excluded by the letter of the law from adoption either as single parents or as spouses, but practice gives us rather disappointing examples, such as the recent case of Professor Catherine Riley, who spoke about her experience as a transgender woman with the institution of adoption in Greece and the discrimination she faced.

The debate, however, at least in theory, remains open and the law is clear: following the above major consideration, nothing would prevent the application of the presumption of paternity in the case of a husband who agrees to the recourse of his transgender spouse to ART and in particular to the surrogacy procedure, as is the case for cis heterosexual couples. So far, the author has not been aware of any case of such a couple having initiated the procedure for obtaining court permission to have a child through a surrogate mother.

Similarly, the case of a transgender man whose partner/spouse resorts to ART methods and has a child should not be a legal concern, as it should normally be covered by the presumption of paternity. In this case, the transgender male parent should be able, on the basis of the existing provisions, to be recognised as the father of the child either by proceeding with his notarised consent to the recognition of the child to be born with third donor sperm outside marriage or civil partnership under the combination of Articles 1456 and 1475(2) CC or because the child was born in this way within his civil partnership or marriage with his partner/spouse.

Even more typical of the evolution of family relations beyond the provisions of the Civil Code is the example of transgender men, who proceed to have a child by gestating and giving birth to it, being recognised as “seahorse fatherhood”.

The questions that arise are: can the rule of “mater semper certa est” be applied in this case? Will the relationship of these persons to the child be established on the basis of this rule, as in the case of legally recognised women who give birth? If they have entered into a marriage or cohabitation agreement with another person, can there be a presumption of paternity of that person?

It is worth considering the following cases in practice:

1. A transgender man, before his gender identity is legally recognised, resorts as a single woman to the methods of ART, becomes pregnant and, during the pregnancy, enters into a civil partnership or marriage with another man, while at the same time, before giving birth, completES the legal recognition of his gender identity.
2. A trans man, before his gender identity is legally recognised, resorts as a single woman to ART methods, becomes pregnant, and during pregnancy enters into a civil partnership or marriage with a woman, while at the same time completes the legal recognition of his gender identity before giving birth. In this case we have a child born to a legally and socially heterosexual couple but born to the person who identifies as male.

In the cases under consideration (where, it should be noted, the trans man could become pregnant without recourse to ART methods) the issue is not in principle whether the presumption of paternity can be applied to establish kinship with the partner/spouse of the man who gives birth, but how to establish kinship with a child with the man who gives birth.

Before moving on to an attempt to answer the question, it is worth mentioning the legal systems that have been legally confronted with the issue. Two types of approach can be distinguished in this respect:

1. The first proposes that in this case the transgender man should be legally recognised as a mother, in a manner similar to the provision of Greek law, which, especially for relations with their children, treats transgender parents with their “dead” gender according to article 5 of Law No. 4491/2017. This attitude has been adopted in particular by the English case law, where the Court, on the grounds that maintaining the status of the mother is consistent with the need for stability in family law and the child’s own right to know its origin (an argument rather unconvincing since the child in question will indeed come from a trans man).

In particular, the High Court in England has rejected a father’s application to be recognised in the child’s birth certificate and other documents as such, holding, on the one hand, that mother ‘is the status attributed to the person subjected to the physical and biological process of pregnancy and childbirth’ (an argument which is likewise not so firm given the recognition of socio-emotional kinship) and, on the other hand, taking into account the need for a structured and certain administrative system for the registration of births.

A similar approach was taken by the German courts in a case that went all the way to the Court of Strasbourg, in which it was held that the registration of a transgender father, who had completed the legal recognition of his gender identity as the mother before the birth of the child, did not violate the applicant’s right to respect for his private and family life under Article 8 ECHR.

2. The second approach is governed by respect for the identity of the transgender parent and has been adopted in principle by Sweden, which has even adapted its legislation in this respect by providing that a transgender father who gives birth will be legally registered as the father. The legislative change reflects a previous Swedish court decision which recognised that the registration of this parent as the father did not actually prevent the need to draw up civil status documents and was instead compatible with the obligations of the Contracting States under the Convention on the Rights of the Child to ensure that the identity of the child was not called into question. However, even in the Swedish case, the partner/spouse of the father is not automatically considered to be the parent of the child, as would be the case if the presumption of paternity/parenthood were to apply by analogy, but a special judicial or administrative decision is required. Iceland and Denmark now have similar approaches to the recognition of a transgender father who gives birth.

Returning to the above working scenario, the following must be accepted in the light of the above: In both cases it is most likely that Greek legislation would treat the man giving birth as the mother of the child by applying by analogy article 5 of Law no. 4491/2017. Therefore, in the second case, where we are talking about the acquisition of a child by a heterosexual couple (however, the man of the relationship carries and gives birth), there would be no reason to apply the presumption of paternity under the current provisions, as the presumption does not apply, as mentioned above, in the case of female spouses/partners. Similarly, in the first case, where a child is eventually acquired by a same-sex couple, the presumption of paternity will not apply, since, as explained, de lege lata the latter covers cases of heterosexual couples.

However, as a consequence of the above, the question arises as to what the fundamental difference is in the cases presented and whether the interests of the child justify the different treatment of each case, when the common denominator is none other than the need to legally recognise the child’s parents without further legal proceedings, a purpose which is served by the application of the presumption of paternity.

As an epilogue

The way in which the presumption of paternity is provided for in the Greek Civil Code reflects only part of modern family relationships. This conclusion is supported both by the different context in which a child can now be born (marriage or same-sex partnerships) and by the multiplicity of interpretations and roles that the concept of parent is open to in legal and sociological terms, as the example of transgender parents demonstrates.

It remains for the national legislator to decide whether the interests of children, which require a legal link with their parents, can be served by revising the presumption of paternity or by providing an alternative mechanism for establishing kinship in the case of relations between parents and children that differ from the concept of family envisaged by the authors of the Civil Code.