Despite a Commission proposal to remove obstacles to LGBTQ+ families’ freedom of movement across member states, experts said such efforts are likely to continue clashing with EU countries’ ‘national identity’.
The EU Commission’s proposal to ensure parental links established in one country are recognised across the Union seeks to grant all parents – including same-sex couples or ‘rainbow’ families – parental rights in cross-border situations.
Although all countries must recognise the freedom of movement and residence across the Union, as established in article 21 of the EU treaties, not all member states currently recognise parenthood established elsewhere.
“The failure to recognise parenthood can dissuade some families from exercising their right to free movement in some member states, so they may not invest in going to reside in another member state,” Justice Commissioner Reynders said when presenting the proposal on 7 December.
The proposal came in the wake of the so-called ‘Baby Sara’ case, where the baby of a same-sex couple from Bulgaria and Gibraltar born in Spain was left stateless after Bulgaria’s refusal to issue a birth certificate, as the country does not allow same-sex marriage conducted in the country or abroad.
Although the European Court of Justice said the baby and her parents should be recognised under the right to freedom of movement, the situation continues to be stalled.
Reynders said the new regulation will ensure the rights of maintenance and succession to all children, regardless of their family situation, while also guaranteeing parents the right to decide on medical and education issues when they move from one country to another.
Bumpy road ahead
Many MEPs and EU countries agree on the need to recognise parental rights across the EU and ensure that the right to free movement is respected in all member states.
“The free movement of people within the European Union is a right for all children, including those who are the children of rainbow families,” MEP Maria-Manuel Leitão-Marques (S&D) said during a plenary debate on the issue held in November.
However, some saw the move as an attempt to recognise same-sex couples and families across the EU, thereby interfering with national family law – despite the Commission’s assurances that the aim was not to change the legal definition of family on a national level.
According to MEP François-Xavier Bellamy (EPP), “with this regulation, the Commission simply wants to impose on all the member states a change that is in no way within its competence: to decide on the definition of the family, on the recognition of filiation”.
Bulgarian MEP Angel Dzhambazki also criticised cross-border recognition of parenthood as an attempt to “change our way of life”.
As the proposal will next be discussed by member states, opposition can be expected from conservative countries such as Poland, Hungary and Bulgaria, due to fears that the regulation could lead to wider recognition of LGBTQ+ rights.
‘Like an elastic’
The Commission is pushing for better protection of the right to free movement of LGBTQ+ families on multiple fronts, including with a review of the 2009 guidance for the application of the free movement directive, which is at “an advanced stage” according to Equality Commissioner Helena Dalli.
Yet, despite the push for better LGBTQ protections, the clash with national values is expected to remain.
“Free movement was never expected to be unlimited,” EU law professor Alina Tryfonidou said, adding that the relationship between the EU and member states is “like an elastic”.
“On the one hand, you have the EU that wants to progress with free movement and protect citizens’ fundamental rights. On the other hand, you have the member states that […] want to make sure that they maintain their power to regulate aspects and areas which are very important to them.”
In Tryfonidou’s view, the EU is trying to achieve “the perfect compromise”, but limitations to free movement will always exist as they are provided in the treaties.
The Treaty of Lisbon, for instance, introduced the concept of ‘national identity’ in 2009.
“That in itself showed that the EU is saying ‘we know that there are rights provided by EU law, but at the same time, we don’t want to interfere with national identity’.”
[Edited by János Allenbach-Ammann/Nathalie Weatherald]