Same-sex marriage law could face challenges over surrogacy exclusion
A new law in Greece allows same-sex couples to marry but excludes them from future parenthood through surrogate mothers, which could lead to it being challenged in court, according to legal experts.
“A blanket measure that excludes same-sex couples from surrogacy when opposite-sex couples enjoy this right in Greece is, in principle, discriminatory,” says Vassilis Tzevelekos, reader in law (associate professor) at the University of Liverpool School of Law and Social Justice, asserting that the legislation might eventually face challenges before the European Court of Human Rights (ECtHR) in Strasbourg.
The bill passed with 176 votes in favor and 76 against in the 300-seat Parliament last week. It was not supported by the more traditionalist faction of New Democracy, with 51 MPs from the ruling party voting against or abstaining, so support from four opposition parties on the left of the political spectrum (SYRIZA, PASOK, New Left and Course for Freedom) was needed to raise a majority. Opinion polls had indicated that the public of this socially conservative nation was narrowly in favor of the reform, which faced strong opposition from the reactionary but influential Orthodox Church.
In addition to recognizing same-sex civil marriage, the legislation clears the way for adoption and grants equal rights to both same-sex parents as legal guardians of a child. Prior to this, such rights had only been extended to the biological parent. But parenthood through surrogate mothers remains restricted to women – single or married – who are unable to bear children on health grounds.
While the 46 signatory states to the European Convention of Human Rights (ECHR), including Greece, have some discretion to regulate certain aspects of parenthood, such as whether to allow surrogacy and who can resort to it, these decisions must comply with Article 14 of the convention, which prohibits discrimination.
Experts say that an exclusion can only be considered acceptable or legally justifiable if the discrimination in question serves weighty and legitimate goals, such as protecting the rights of the child, thus making the discrimination necessary.
“In my view, no such reasons exist,” says Tzevelekos, who is also a member of the Council of Europe's anti-torture committee (CPT) and the UN's Human Rights Council Advisory Committee. “But it will be interesting to see what grounds Greece may invoke and how convincing these can be,” he adds.
To date, says Alina Tryfonidou, assistant professor in the Department of Law at the University of Cyprus, there has not been a case at the Strasbourg court that distinguishes between married opposite-sex couples and married same-sex couples concerning parenthood, including parenthood through surrogacy. “But I am almost certain that the ECtHR would find that reserving a right only to married opposite-sex couples and excluding married same-sex couples would amount to direct discrimination on the grounds of sexual orientation,” she says, also underlining Article 8 of the convention protecting the right to respect for private and family life.
Greek courts will be invited to remedy this discrimination and, should they fail to do so, the issue is very likely to be raised before the Strasbourg court.
“This can be done after all domestic remedies are exhausted, which obviously is something that will take many years,” Tryfonidou says.
Those anticipating a swifter vindication by seeking redress with the Court of Justice of the European Union (CJEU) may be disappointed. Experts suggest that the likelihood of similar action before the top European Union court is slim.
The EU rulebook stipulates that medically assisted reproduction falls primarily within the jurisdiction of member-states; meanwhile, family law is under their exclusive jurisdiction. “The exclusion of same-sex couples from surrogacy in the Greek territory does not violate EU law,” Tryfonidou says.
Konstantinos Rokas, assistant professor of private international law at the Law School of the Aristotle University of Thessaloniki, explains that “EU law can only influence such provisions indirectly,” as national legislation would have to infringe upon one of the fundamental freedoms of the European Union – such as the freedom of movement or residence.
EU law, in fact, imposes an obligation of cross-border recognition of an already existing parent-child relationship between a child and both of their same-sex parents, but only for the purpose of enabling the family to exercise free movement and residency within the European Union.
Greece's new law affords such cross-border recognition, guaranteeing compliance with EU regulations.
“I find it very unlikely that the case will be adjudicated in the EU court,” says Rokas, concluding that the Strasbourg court is the most appropriate platform for challenging the Greek law on grounds of discrimination.