The Greek legal order, like that of many other EU member states, has consistently denied the recognition of parental rights to same-sex couples, citing the protection of “public order, marriage and the family”. But it is now part of a larger legal order, the European legal order, and the same issues take on a different dimension. One country bans adoption, a neighbouring country allows it. In a third country you may even be able to have a biological link with your child.

When in three hours by plane you are in a country where you and your partner can have a child, the question is what happens when that child is back in Greece. Will it have parents? And if so, how many?

At this point, the ‘critical’ legal order seems to stumble on a value of its own: the protection of the child’s interests.

The Greek issue:

Law 4538/2018 on Adoption and Foster Parents does not grant registered partners, same-sex or heterosexual, the right to adopt. Since both successive and joint adoption are only allowed for married couples, same-sex couples face a loop-hole of discrimination. What this means: that since adoption is linked to the ‘gold standard’ of marriage, which in turn remains a privilege only for married couples, there can be no question of discrimination, since heterosexual registered partners are technically excluded from adoption. It is only that same-sex couples, unlike their heterosexual counterparts, are not allowed to marry and thus to create families in violation of the right to family and private life protected by Article 8 of the European Convention on Human Rights (ECHR).

The same applies to surrogacy and in vitro fertilisation, which are also excluded as options, as they are only provided for married heterosexual couples (or single women in the latter case!) and always as a means of fertility treatment.

The above inevitably implies that Greeks who decide to adopt, undergo IVF or enter into a surrogacy agreement abroad, or European counterparts residing in Greece, run the risk that their children will legally have only one parent, and the parent to whom the child is not biologically related is legally ignored!

The example of Italy: challenging tradition

Recent European jurisprudence shows ‘colourful’ families an indirect path to the much sought-after legal recognition.

In the cases of Paradiso and Campanelli v. Italy and Menesson and Labas v. France, the European Court of Human Rights referred to the concepts of “de facto family life” and the child’s right to family life, identity and upbringing.

Italy in this respect is paving the way: although its legislative framework, as in Greece, does not grant same-sex couples parental rights and the right to marry (recognizing only the civil partnership), there has been a number of decisions (from the Courts of Appeal of Milan, Trento and Florence), where the national judge, faced with cases of ‘prohibited’ cross-border adoption, surrogacy or IVF, has ruled in favour of the child’s right to kinship, parenting and identity. A similar decision has been issued by the German Federal Court of Justice. In these decisions, the judge was able to recognize the legal bond between members of the “de facto” family without the intrusion of judgements and concepts of “marriage protection” or “public policy” (legal terms that are usually the dead end for LGBT rights).

Even the most conservative Czech Republic in terms of LGBT rights has ruled in favour of recognizing a similar case of cross-border adoption on the basis that ‘every child has the right to have parents’.

Paradoxically, in these cases, “public policy” seems to be overridden by a fundamental and deeply rooted principle within the very concept of public policy, the protection of the interests of the child﮲ which cannot be disregarded for social policy reasons.

Why not in Greece?

A precondition for the recognition of foreign judgments in the domestic legal order is that the fundamental values of the latter (“public order clause”) are not violated through them. However, public order as a concept seems not only to be challenged and mutated, but also to be “stumbling” on the values it espouses and in the name of which it consistently refuses to recognize same sex-parenthood. The same values are currently forcing public policy to recognize it!

Given the above, there is no legal reason why Greece should not be the player in the next round!

Let’s not forget that the Kallithea Magistrate Court recently recognized the right of a citizen to register as a non-binary person, breaking down concepts and taboos that no one would expect. Things are beginning to change and there is no turning back.

In lieu of an epilogue

As long as the EU cannot impose direct recognition of homosexuality in the Member States, the principle of protecting the interests of the child emerges from the courtrooms of Europe as a shortcut, a side-road to this result.