Chapter eleven: Parenting

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Article 23 of the ICCPR protects the “right of men and women of marriageable age to marry and to found a family”. Similar rights to founding or raising a family are protected in regional human rights instruments.^[1] Do lesbian, gay, and transgender individuals have the same right to be parents as everyone else? Does a person’s sexual orientation or gender identity affect his or her ability to raise a child? The cases in this chapter deal with these questions.

^[2] Because historically gays and lesbians have been portrayed as paedophiles or criminal or moral degenerates, gay parenting was often perceived to be a contradiction in terms. One US court ruled that a biological father’s homosexual relationship rendered him “an unfit and improper custodian as a matter of law”.^[3] Even courts that did not adopt per se rules of unfitness imposed extra evidentiary burdens on homosexual parents. Another court thus reasoned that “there are sufficient social, moral and legal distinctions between the traditional heterosexual family relationship and illicit homosexual relationship to raise the presumption of regularity in favor of the licit, when established, shifting to the illicit, the burden of disproving detriment to the children”.^[4]

Similarly, in Portugal, the Lisbon Court of Appeal, reversing the joint custody decision of a lower court, stated:

The child should live in a family environment, a traditional Portuguese family, which is certainly not the set-up her father has decided to enter into, since he is living with another man as if they were man and wife. It is not our task here to determine whether homosexuality is or is not an illness or whether it is a sexual orientation towards persons of the same sex. In both cases it is an abnormality and children should not grow up in the shadow of abnormal situations.^[5]

Especially in Europe, many of the States that have granted legal recognition to same-sex couples withhold from them rights to adopt or access to assisted reproductive technology (ART).^[6] The Netherlands was the first country in Western Europe to allow same-sex couples to adopt jointly, although it continued to bar them from adopting from foreign countries.^[7]

Nevertheless, LGBT individuals have children, want to have children, and seek legal recognition as parents of the children they raise. The reality of gay and lesbian parenting first surfaced in courts as the result of custody disputes following divorce.^[8] In the 1999 case of Salgueiro da Silva Mouta, the European Court of Human Rights concluded that the Lisbon Court of Appeal had violated the applicant’s rights, protected by Articles 8 (family life) and 14 (non-discrimination). In reaching this view, the European Court held that sexual orientation was a concept that was undoubtedly covered by the Convention.^[9] A similar case before the Inter-American Court of Human Rights, pending at the time of publication, examined the denial of custody to a lesbian mother in Chile. When Karen Atala and her husband divorced, the original custody arrangement gave Atala custody. The children’s father filed suit on the grounds that Atala’s “new sexual lifestyle choice” was harmful for the children. In 2004 the Supreme Court of Chile agreed, granting permanent custody to the father.^[10]

The cases from Argentina and the Philippines concern custody disputes following divorce or separation of the biological parents. In the Argentine case, LSF y ACP, the mother argued that the fact that her former husband lived with a man placed the children in a situation of “moral danger”. The court acknowledged the extent of social intolerance and hostility to same-sex sexual orientation, but concluded that the sole and essential issue was a parent’s suitability as a parent. A parent’s “lifestyle” was only relevant if it had a negative impact on the child’s development. To hold that a parent’s “non-conventional sexual behavior” necessarily meant that he or she could not exercise parental authority would amount to prohibited discrimination.

In Pablo-Gualberto v. Gualberto, the Supreme Court of the Philippines reached much the same conclusion, when it considered a statutory presumption in favour of maternal custody for children under seven years old. To remove a child from its mother before that age, the Court ruled, a court would have to find “compelling reasons”. Simply showing that the mother was a lesbian was not a sufficient reason. To succeed, a father would have to demonstrate that the child’s “proper moral and psychological development” had suffered, and no such showing had been made.

This issue has also arisen with respect to biological parents who transition from one gender to another. In P.V. v. Spain, the European Court did not find a violation of the Convention when a Spanish tribunal reduced visits with a biological parent undergoing gender reassignment; but it emphasised that gender identity was a prohibited ground of discrimination.^[11] The Court noted that visitation rights were only reduced on a temporary basis and were then to be increased once the period of “emotional instability” had ended.^[12]

In an early case included here, Christian v. Randall, a US court reviewed a custody order originally granted to the mother following divorce. The father petitioned for custody on the grounds that his former wife had undergone gender reassignment and was now married to a woman. The court disagreed, on grounds that made no reference to morality, social prejudice, or equality. It relied instead on a State law providing that “the court shall not consider conduct of a proposed custodian that does not affect his relationship with the child”. Since nothing in the record indicated that the mother’s gender transition had impaired the “emotional development” of the children, or their relationship with their custodial parent, the court upheld the original custody order.

A second set of issues arises in the context of individual adoption, adoption by couples, and second parent adoption. In E.B. v. France, the European Court of Human Rights found that it was discriminatory for the State to reject an application to adopt based on the candidate’s sexual orientation. In taking this position, the European Court distinguished (and tacitly overruled) the earlier case of Fretté v. France.^[13] Though French law permitted adoption by individuals, the domestic record had revealed a disproportionate concern with E.B.’s relationship with another woman and the lack of a “paternal referent”.^[14]

Some States ban adoption by gay individuals, although these bans are falling in court challenges. In 2006, in Department of Human Services and Child Welfare Review Agency Review Board v. Howard, the Supreme Court of Arkansas struck down an administrative regulation that prohibited an individual from acting as a foster parent if an adult member of the household was a homosexual. The Court reasoned that the exclusion was based on the child welfare agency’s “standard of morality and its biases” and that the State legislature had not granted the agency the power to promote morality.^[15] In In re Matter of Adoption of X.X.G. and N.R.G, a Florida State court upheld a lower court’s finding that a law which prohibited all gay and lesbian adoption without exception was in violation of the equal protection guarantee of the Florida Constitution. The Department of Children and Families did not argue that gay people, as a group, were unfit to be parents, but that children would have better role models and face less discrimination if they were placed in “non-homosexual households” with married opposite-sex parents. The court found this argument unpersuasive in light of evidence that Florida law permitted adoption by individuals and also permitted foster parenting and guardianship by homosexuals. No rational basis existed for distinguishing between foster parents, or guardians and adoptive parents, on the basis of sexual orientation. A concurring opinion emphasised that, by the time of the court ruling, both children had already spent a significant portion of their lives with their adoptive father. The application of a categorical ban would be directly contrary to the best interests of the children.

Even today many countries forbid joint or second parent adoption by same-sex couples, either because they are unmarried or because of their sexual orientation.^[16] For example, in Gas & Dubois (pending before the European Court at the time of publication), the applicants challenged a decision of a French court that denied to a lesbian woman the right to legally adopt the daughter whom her partner had conceived via ART.^[17] Similarly, in May 2011, the Federal Tribunal of Switzerland ruled that the registered partner of a woman could not adopt the daughter whom they had jointly planned and raised together.^[18]

In joint and second parent adoption cases, the unrecognised partner of a parent may have no legal rights vis à vis the children. If the partners separate or the legal parent dies, the connection between the child and his or her de facto parent may be severed. In one of the first US cases to recognise a second parent adoption, decided in 1993, the Supreme Court of Vermont stated:

The Constitutional Court of South Africa addressed these issues in a pair of cases decided in 2002 and 2003 and included here. In the first, Du Toit v. Minister for Welfare and Population Development, the applicants challenged legislation that limited to married couples the right to adopt children jointly. At that time, same-sex couples in South Africa could not marry. The court emphasised the problems that arose when the law did not recognise and protect the de facto parent.

Although the first applicant is not the legally recognized adoptive parent, she is the primary care-giver. … Yet, she has no legal say in matters such as granting doctors permission to give either of the children an injection or the signing of school indemnity forms for school tours or sporting activities. More importantly, in the event of the partnership between herself and the second applicant ending, her claim to custody and guardianship of the children would be at risk.

The Court concluded that legislative exclusion violated not only the equality and dignity guarantees of the Constitution, but also Section 28(2), which provided that the best interests of the child was of “paramount importance”. The second case, J v. Director General, Department of Home Affairs concerned exclusion of the female partner of a “birth mother” from being recognised as the parent of their twin children; the Court followed the same reasoning.

Courts in Brazil and Israel took a similar path in ruling that lesbian women could adopt their partners’ children. In the Brazilian case, Public Ministry of the State of Rio Grande do Sul v. LMBG, LRM had adopted two children at birth and was their sole legal parent. Her partner, LMBG, sought recognition as their second legal parent. However, the law did not recognise second parent adoption other than by married spouses or partners in civil unions, which at the time were limited to heterosexual couples. The court emphasised that the principle of the best interests of the child was enshrined in the Constitution. Denying adoption rights to the second parent would leave the children without the right to inherit from LMBG’s estate and, if LRM died, the children would lose the right to live with LMBG. Clearly, adoption was in their best interest. In the Israeli case, Yaros-Hakak v. Attorney General, two women had each given birth via ART and were raising the children together. The Supreme Court of Israel, citing the Vermont Supreme Court case among others, judged that the adoption law permitted second parent adoption (without curtailing the first parent’s rights) according to the “supreme principle” that the best interests of the child should prevail.

The right of same-sex couples to adopt jointly was contested in Mexico when the Attorney General challenged a new law adopted by the Legislative Assembly of the Federal District.^[20] (This case is included in Chapter Thirteen.) The Attorney General argued that situation of children adopted by same-sex couples would differ from that of children adopted by opposite-sex couples and that such adoptions were therefore not in their best interest. In the judgment of the Supreme Court, however, presuming that same-sex couples were unfit to adopt children because of their sexual orientation was akin to excluding a category of couples from adoption on the basis of race or ethnicity, and was in violation of the Constitution.

Gay and lesbian parenting cases also arise when parents seek recognition of foreign custody or adoption orders, as in the cases here from Italy, Slovenia and France. The Italian and Slovenian cases illustrate very different interpretations of the requirement of public order. In Decree of 26 September 2006, an Italian court refused to recognise a foreign same-sex adoption on the grounds that it was manifestly contrary to public order. In In re Foreign Adoption, by contrast, the Supreme Court of Slovenia reasoned that public order in Slovenia included the international understanding of public order articulated by the European Union and the Council of Europe. Since Europe’s public order prohibited discrimination on grounds of sexual orientation, the court rejected the Prosecutor General’s appeal against recognition of a foreign same-sex adoption.

Many of the cases in this book raise issues of equality, equal protection, non-discrimination, privacy and dignity. In this chapter, however, the cases introduce a new set of concerns. As a number of the decisions make explicit, the guiding principle is, or should be, the best interests of the child, as reflected in both the Convention on the Rights of the Child and domestic law. How that principle is applied in practice is a function of changing perceptions about sexual orientation, its relevance to child-rearing, and the recognition that same-sex families exist.