INTRODUCTION

This chapter examines the position of the children of rainbow families (i.e. families comprising a same-sex couple and their children) in cases where such families move between European Union (EU) Member States and include at least one EU citizen. Currently, a division exists in the EU between Member States that provide legal recognition to same-sex couples and to the parental linkage between such couples and their children and Member States that provide only limited or no legal recognition. When same-sex couples move with their children from a Member State where they are fully legally recognised as a family to a Member State that refuses to afford full (or any) recognition, this is problematic from several perspectives. The free movement and fundamental (human) rights that both children and their parents enjoy under EU law are clearly affected when recognition is refused. This chapter explores whether EU law can assist the children of rainbow families when they seek legal recognition in a host Member State as children of both their parents under EU law.

LEGAL RECOGNITION OF RAINBOW FAMILIES IN EU MEMBER STATES: THE CURRENT SITUATION

The ‘nuclear family’, comprising different-sex married spouses and their legitimate and biologically linked children, was never the only form of family that existed. However, until recently it has been the main form of family recognised under the law. Nonetheless, ‘the family’ is a flexible and adaptable unit. Recent years have seen an increase in ‘alternative families’, with many families now comprising (unmarried) cohabitants, children and their step-parents, children and their single parents, and children and their same-sex parents. Therefore, the law must not only recognise such alternative families, but also provide a system that is sensitive and responsive to their specific needs.

Same-sex couples are incapable of having children who will be biologically related to both members. Such couples can, however, become de facto parents in several ways, such as through donor insemination (known or anonymous), assisted conception, surrogacy, a prior opposite-sex relationship, or adoption. This means that in some situations, one of the members of the couple will be biologically connected to the child (e.g. when one of the female partners in a same-sex couple undergoes medically assisted insemination using her own egg or when the sperm of one of the male partners in a same-sex couple is used in a surrogacy arrangement).