INTRODUCTION

The impact of international human rights law (hereafter IHRL) on family law in general and on legal relationships between adults and children in particular cannot be underestimated. Indeed, a wide range of IHRL instruments contribute directly or indirectly to the constant reshaping of the legal regulation of family and relationships between its members. The concept of family is a relative one and accordingly the meaning and significance of the notion of family life is dealt with differently under each protection system. After an overview of the relevant instruments (section 1), this contribution aims at broadly describing how IHRL may influence legal relationships between adults and children in the context of traditional families (section 2), ART families (section 3) and families based on social and emotional ties (section 4).

OVERVIEW OF THE RELEVANT INSTRUMENTS

UNIVERSAL INSTRUMENTS

The most relevant human rights instruments enshrining universal standards for legal relationships between adults and children have been elaborated in the framework of the United Nations.

The 1948 Universal Declaration of Human Rights set out the principle that ‘family is the natural and fundamental group unit of society and is entitled to protection by society and the State‘. Privacy and family are expressly protected by article 12, whereas articles 25 and 26 directly address the children's right to an adequate standard of living and to education.

In 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) both reaffirmed family as the ‘natural and fundamental group unit of society‘. Article 24 of the ICCPR provides children with the general right to ‘such measures of protection as are required by his status as a minor’ and, more specifically, with the right to ‘be registered immediately after birth’ and to have a name as well as a nationality. Article 10 of the ICESCR provides – for its part – that'special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions‘.

The flexibility model

Legal parenthood has to remain the fundamental cornerstone of the legal regulation of adult-child relationships but should be more flexible and reflect the changes in family structures. This could mean, for example, that legal parenthood should be easier to challenge and to reallocate. This could also mean that legal parenthood should be open to homosexual couples and/or to more than two persons.

The diversification model

The law should develop existing alternatives or invent new alternatives to legal parenthood in order to reflect changes in families. This could mean, for example, that there should be another/some other legal status available beside legal parenthood such as a status of ’ genitor ‘or’ procreator ‘or’ social parent ’ that would be associated with a predefined range of rights and duties.

The diffraction model

The law should allow for a wide distribution of the specific rights and obligations traditionally associated with parenthood between several adults (parental responsibility, maintenance, contact rights and information, changing of names, inheritance, welfare benefits and tax law). This could mean, for example, that anyone should be allowed to make an application for parental responsibility, maintenance, contact and/or information in relation to a child, independently of any predefined status, and that the decision should depend on a casuistic balance of the (conflicting) interests at stake.

The hybrid model

A combination of a certain level of flexibility, diversification and diffraction is required to reflect the changes that occur in adult-child relationships in our postmodern societies. This would mean that none of the models proposed above is sufficient to react to the rapid evolution of family realities and that two models (at least) should be combined in order to reconstruct the legal regulation of relationships between adults and children.

CHANGES IN THE TRADITIONAL FAMILY

A. MOTHERS

1. Is maternity automatically established by the birth certificate?

2. Does your jurisdiction recognise any kind of ‘anonymous childbirth’?

3. If any kind of ‘anonymous childbirth’ is recognised, what rights does the

natural mother have in respect of the child?

4. In thesamesituation, what are the child's rights in respect of the natural mother (and her other children)?

B. FATHERS

5. Is paternity automatically established by way of a presumption? If yes, does

the presumption only apply within marriage?

6. If paternity is not established by way of a presumption, how can it be established?

7. If legal paternity is established, can it be challenged, in particular by a man who claims to be the biological father?

8. What rights does a biological father who is not the child's legal father have?

9. What are the rights of the child as regards his or her biological father if the latter is not the child's legal father (and as regards his other children)?

C. CONSEQUENCES OF LEGAL PATERNITY AND MATERNITY

10. What rights and obligations exist between legal parents and their child as an automatic consequence of the establishment of legal paternity/ maternity?

11. Do children have rights in relation to their parents’ intestatesuccession?

Do they have a right tosucceed to a reservedshare of their parents’ estate?

If not, are there other mechanisms in place to protect children's interests?

LEGAL RELATIONSHIPS IN THE ENLARGED FAMILY:

GRANDPARENTS AND SIBLINGS

12. Do people other than the father and mother have rights or duties towards children? What kind of rights and duties?

EMERGENCE AND DEVELOPMENT OF ARTIFICIAL

REPRODUCTIVE TECHNOLOGY

A. AUTHORISED TECHNIQUES

13. Are IVF and egg,sperm or embryo donation authorised?

14. Issurrogacy authorised?

INTENDED PARENTS

15. Who has access to ART (artificial insemination and IVF)? What conditions must be fulfilled beforesuch a process can begin?

16. Who is able to accesssurrogacy? What conditions must be fulfilled?

Tables in this part of the book show how jurisdictions react to legal issues related to adult/child relationships and should, in principle, be understood in the following way:

— Horizontal lines correspond to different aspects of the legal issue the table concerns and vertical columns correspond to reviewed jurisdictions;

— Several columns may be grouped together to indicate that a larger group of jurisdictions share a globally similar approach to the legal issue at stake;

— Some jurisdictions are in italics, indicating that they are a specifi c type of jurisdiction;

— Inside the tables, the shading of the cells indicates two things:

It should be mentioned that some of the tables slightly depart from this model as it will appear from the context or the explanations surrounding them.

INTRODUCTION

From a socio-historical perspective, procreation within a heterosexual couple has for a long time been the only socially accepted and legally organised way of founding a family. While deep changes have taken place in the last decades due to substantial sociological changes and the advent of assisted reproduction techniques, and while relationships between adults and children now take place in very different family contexts, today many children still live in what can be called ‘traditional’ families formed by a man and a woman procreating a child and becoming parents through ‘natural’ procreation in the framework of a nuclear family.

The first part of the research questionnaire and of the national reports published in this book focuses on the current regulation and legal recognition/ protection of adult – child relationships in the traditional nuclear family.

Who is legally the mother and the father of a child? With what legal consequences? How, and to what extent, are these relationships protected? Are some relations with other relatives also secured and if so, how?

MATERNITY

In all the surveyed jurisdictions, legal motherhood basically derives from the fact that the mother gave birth to the child. Therefore, in ‘traditional’ families, the genetic link with the child determines maternity. Moreover, or maybe consequently, none of the reviewed jurisdictions makes a difference between married and unmarried women as regards legal maternity.

In all jurisdictions, except Sweden, a birth certificate has to be issued after the child's birth.

Everywhere, the naming of the mother on the birth certificate is a way to document or establish legal maternity. Some jurisdictions consider that a woman is legally the mother by having given birth to the child and being the biological parent; maternity is then established as a fact and the birth certificate is (just) evidence of this fact. In another set of countries (Algeria, Belgium, France, Italy, Romania), being named on the birth certificate appears to be a legal way of establishing motherhood, as without this mention, the woman who gave birth will not be the legal mother; the child's legal relationship with the mother depends on her name as recorded in the register of births or on the birth certificate.

The Adults and Children project arose from the very common observation that changes in human behaviour and scientific techniques lead to complexified family configurations involving a wide range of potentially significant adults. Besides parents, biological fathers, gametes donors and step-parents are only a few examples of additional adults involved in the conception and/or education of a child. For family lawyers, the question then arises of whether and how the relationship between the child and these various adults could or should be recognised and protected by law.

The 18 national reports included in Part I of this book illustrate the great diversity of national approaches of adult – child relationships while at the same time demonstrating that the basic issues are similar in nature and can be expressed in fairly similar terms. Beyond the specificity of legal solutions elaborated in each national context, the range of possible legal paths is not infinite and some common patterns arise. The national reports were elaborated on the basis of a questionnaire and they are presented in this book under this question/answer format which makes the comparison easier. Whereas the first three sections of the questionnaires contemplate three different types of families (traditional families, families created through assisted reproductive technologies (ART) and families based on social and emotional links), the following two sections were dedicated to the relevance of the marriagebased, heteronormative and binary parental model and to the respective role of statutory regulation, judicial discretion and parties’ autonomy in the legal regulation of adult – child relationships. Finally, in the sixth section, the national experts were invited to comment on our proposed conceptual model of the legal regulation of adult – child relationships in postmodern societies. We are most grateful that all the experts consented to engage in this delicate exercise and, in the comparative law contributions discussed below, our team at the Family Law Centre of the Université catholique de Louvain (UCLouvain) tried to make the best use from the very useful information and the very inspiring reflections provided by the reports. Before engaging in the comparative analysis, however, the editors wanted to include some interdisciplinary and international contextualisation which is afforded by Parts II and III of this book.

THE RESEARCH CONTEXT, OBJECTIVES AND METHODOLOGY

It has become a commonplace to highlight the important changes that have affected family life since the 1960s. In recent decades, the traditional marriage-based family model has given way to new protean and polymorphic family configurations arising from the precariousness of couples ‘relationships, the rapid development of assisted reproductive technologies (ART) and the rising concern for the recognition and protection of homosexual couples and same-sex parent families.

Such diversification of family patterns represents a formidable challenge for family law as it calls into question our way of understanding and regulating family behaviours. Recently, major international comparative law projects such as The Future of Registered Partnerships have been undertaken in relation to how the law deals with contemporary couples ‘relationships. This research is in line with these initiatives, but focuses on the complexity and multiplicity of relationships between adults and children.

In our postmodern societies, children are sometimes in the centre of a complex network of links with several adults of both sexes (donor, surrogate, intended parents, biological parents, step-parents, foster-parents) and the law is not always clear regarding how, in such intricate configurations, to recognise, protect and promote valuable relationships. Given the scale of the changes, it is likely that the traditional concepts underlying legal parenthood and/or parental responsibility must be re-evaluated and, perhaps, reconstructed.

There appears to be a wide range of national approaches to this legal challenge. Some countries remain strongly attached to classical patterns while others have embarked upon more adventurous reforms. In such a context, it is obvious that there is a great deal to learn from an in-depth comparative exercise.

Based on these considerations, in 2016, the Family Law Centre of the Université catholique de Louvain (UCLouvain) launched a research project, sponsored by the Louvain 2020 strategic project of the UCLouvain, with a twofold objective.

It aims to give a clear, concise and up-to-date account of the current legal regulations of relationships between adults and children in a wide range of selected countries from all over the world.

It also aims to contribute to the current debates on the future of such regulations by proposing useful models for possible developments and accordingly providing valuable outcomes for family law researchers and national and international family lawmakers.

INTRODUCTION

Based on the national reports, comparative analysis has shown how jurisdictions try to cope with contemporary developments in child procreating and child rearing. Each comparative contribution emphasised a double – substantial and methodological – tension in the legal recognition and protection of relationships between adults and children.

First, across the different types of families, national reports and comparative contributions put forwards a (substantial) tension between biological and intentional/social links as grounds for recognition and protection. Indeed, even in ‘traditional families’, as well as in artificial reproductive techniques (ART) or separated/recomposed families, lawyers may hesitate between several adults when trying to recognise and protect the most meaningful or significant relationships from the point of view of the child. Against this background, this contribution tries to give an insightful account of the kind of restrictions – based on couple status, gender or number – which may limit the range of legally recognised and protected relationships (section 1).

Second, along the range of family types reviewed, reports and contributions gathered in this book show that there is also a (methodological) tension between completely pre-defined solutions and much more open-ended standards to recognise and protect adult – child relationships. Indeed, in each and every family type, a jurisdiction can choose either to give absolute priority to certain relationships (e.g. by systematically preferring biological links or – conversely – by systematically preferring intentional/social links) or to organise more sophisticated and nuanced arbitrations between (potentially) valuable adult – child relationships. Against this background, this contribution tries to give an insightful account of the different legal ways – statutory regulation, judicial discretion and parties’ autonomy – which may be used to organise the recognition and protection of relationships between adults and children (section 2).

Finally, we take the view that these substantial and methodological choices which have to be made by jurisdictions in dealing with contemporary relationships between adults and children may be articulated to each other in four different theoretical models – the flexibility model, the diversification model, the diffraction model and the hybrid model – which can be used to reach a better understanding of the legal regulation of relationships between adults and children in postmodern societies (section 3).

HISTORY AND BACKGROUND

Until the late 1960s, Belgian law did not recognise or formalise any relationship between adults outside of the traditional institution of marriage.

BASIC STRUCTURES OF THE LAW ON ADULT RELATIONSHIPS

In the 1970s and the 1980s, courts gradually began to consider that de facto relationships could have some very limited legal effects. At the same time, unmarried cohabitation expanded rapidly. On the one hand, increasing numbers of opposite-sex couples did not marry while, on the other hand, same-sex couples became more visible but were unable to marry because the legal state of marriage was restricted to heterosexual couples.

In 1998, the Belgian legislature created a new minimalist status called legal cohabitation (cohabitation l e gale ; in the following used interchangeably with the term ‘registered partnership’) open to both heterosexual and homosexual couples (as well as to two adults not forming a couple). In 2003, it decided to go one step further by opening marriage to same-sex couples (but with a few fundamental differences between opposite-sex and same-sex marriage). Therefore, in Belgium both heterosexual and homosexual couples can choose between marriage and legal cohabitation (there are clear differences between the two, on which see below) or they can choose to remain de facto partners. The legal cohabitation regime is only ‘a little stronger than informal cohabitation’ and its legal consequences are ‘far less numerous than those of marriage’.

MOTIVES FOR THE INTRODUCTION OF REGISTERED PARTNERSHIPS

The law has its origins in a law proposal brought before the Belgian Parliament on 23 October 1995 by four representatives. At the very beginning of the legislative process, the proposal was about a ‘common life contract’ (contrat de vie commune) rather than ‘legal cohabitation’ (cohabitation l e gale). According to the authors of the proposal, a law was necessary for two main reasons: firstly, marriage was less attractive than it had been before; and secondly some social groups who could not marry (same-sex couples) or did not want to marry (opposite-sex couples) were asking for a legal framework for their relationship. The proposal emphasised that the common life contract differed radically from marriage and aimed only at creating an elementary guarantee for the partners.

INTRODUCTION

For approximately thirty years now, the European Court has constantly been reshaping the relations between individuals, the family and the State. On the one hand, the autonomous concepts of private life and family life have been given a totally unexpected width. On the other hand, the obligations imposed on States in this ever-enlarging field have also become heavier. Article 8 requires States not only to abstain from undue interferences, but also to protect individuals from each other and to adopt positive measures designed to ensure the effectiveness of rights.

However, the rights guaranteed by the Convention may suffer restrictions on different grounds. The second paragraph of Article 8 of the Convention foresees that States may limit individual rights in order to pursue different legitimate aims such as the security or the economic well-being of the country, the protection of the rights and freedoms of others or the protection of morals. The pattern of justifications imposed on States regarding actions and abstentions in the ambit of personal and family life is evolving: at first sight, one could think that morals and traditions are much less efficient today than they used to be in the early case law of the Court. If this would be consistent with the contemporary favour for ‘liberal pluralism’, recent decisions suggest that the Court is still ready to uphold national solutions inspired by ‘legal moralism’.

This contribution studies, firstly, how moral and traditional views seemed to have been progressively delegitimised as justifications for restrictions to personal autonomy and equality between people and family forms (section 2) and, secondly, how, for a couple of years, majoritarian conceptions of morality appear reinvested with considerable weight while traditional views on family relations are treated in a schizophrenic way by the European judges (section 3).

FROM A DELEGITIMISATION OF MORALS AND TRADITION AS JUSTIFICATIONS FOR RESTRICTIONS ON RIGHTS

The protection of morals has oft en been invoked by States trying to justify restrictions on individual freedom in sexuality-related matters (section 2.1). The protection of the traditional family has rather been advanced as an argument justifying the differentiated treatment of unconventional families and inequalities between men and women (section 2.2).