’A new order of the European family’ needs to be established around the child, with due respect for the rights of parents. The European Convention on Human Rights and the International Convention on the rights of the Child provide the framework for this. Biological parentage of a child should, under normal circumstances, go hand in hand with social and legal parentage. These three factors should only be divorced, in practical terms, if one of the parents has failed, or voluntarily consented to the child’s adoption. In short, the joint responsibility of the true parents of the child should be favoured by the legal and social systems whenever possible, even in the event of separation or divorce, and even where a new ’re-grouped’ family is formed.
M.-T. Meulders-Klein (1996: 520)
The maternity cases discussed in this chapter are the very few and important judgements in the case law of the European Court regarding the constitution and the rejection of maternal filiation.Marckx v. Belgium from 1979 acts as a starting point for the empirical analysis of parental relations of consanguinity and filiation in this study, as it demonstrates that not even maternity comes into existence without a pre-existing legal framework and an accepted political and legal consensus, and for this principle to be regarded as a human rights norm there has to be consensus between States, for example, in the form on intergovernmental treaties. From the point of view of the articulation of human rights in the context of parent-child relations it is a seminal case as it places children born within and outside marriage on an equal footing with regard to maternal filiation. In Marckx v. Belgium it was also stressed that different forms of family should be legally recognised. In many ways,Marckx illustrates the idea of the ‘core family’ of a mother and child(ren) as seen by Fineman, who argues that “the mother-child formation would be the ‘natural’
or core family unit – it would be the base entity around which social policy and legal rules are fashioned” (1995: 5-6). Fineman’s argument is based in the Anglo-American political context of single mothers as a ‘deviant’ category, but this notion is useful also when applied to the legacy ofMarckx v. Belgium and the bundle of relations that a child’s parentage is built on.
The case ofMarckx does not touch upon the paternity of the child so it engages only with certain issues, but in illustrating the historical need to recognise the capacity of birth mothers to be able to assume parenthood over their children it is vital. The essential outcome of the case, from the normative point of view, is that the marital status of the mother of a child must not act as an impediment to the establishment of officially sanctioned relations between a child – and her wider family and network of relatives through the mother.
Even though most legal systems in Europe have for long been favourable to
assuming an incontestable bond between a birth mother and the child she gives birth to, theMarckx judgement demonstrates that even this bond is not self-evident or somehow outside the realm of administrative formalities. The case illustrates the meaning of legal fictions and rules, acts of formal recognition and the power of law in the making of maternity and officially recognised mother-child relations. To take the argument to the extreme, one could say that in the realm of parentage, nothing follows merely on the basis of nature.
Marckxacts as a prime example of how, from a sociological point of view, a biological and physical event such as the birth of a child is not enough to form a recognised bond within the society in question unless there are social and legal structures in place making this possible. Nedelsky’s perspective (see Chapter 3.3) is also neatly applicable to Marckx: by restructuring, or in this case simplifying, the legal relation of a mother’s entitlement to a child and a child’s entitlement to her mother, a child otherwise in the situation of a foundling was able to have a full legal parent by the virtue of being born to her and not just through a cumbersome and possibly humiliating adoption process between two consanguineous persons connected corporeally and immediately by the fact of birth. The core value here could be called equality between children born in and out of wedlock and between married and unmarried mothers. This could be characterised as a relational right of offering motherhood special protection in the spirit of the social protection offered by Article 25(2) of Universal Declaration of Human Rights118 in order to protect the well-being of the mother, the child and the bond that they already share due to genetic similitude, gestation and the intention of the mother.
WhereasMarckxwas in many ways a story with a happy ending, the cases described in the second sub-chapter offer a description of the other side of rejected maternity: possible ambivalence on the part of the birth mother concerning giving the child away, and the perennial problem of the right to know one’s origins.Odièvre v. France,Kearns v. France andX. v. the United Kingdomillustrate situations where a birth mother wants renounce her rights to the child she has given birth to, but also the problems following from these practices: in Odièvre, the ‘right to know’ of the child given for adoption as a result of anonymous birth, and inKearns andX., the problems associated with the desire to reverse the renouncement of maternity. In both cases, the relation between the adoptive parents and the adopted child is what prevails as the most protected form of family life.
Expecting mothers are given the possibility to benefit from the mater semper certa est principle, but if they opt out of it and do not claim the child back in the period granted to them by law, the State places the child in the hands of adoptive parents and makes them the legally recognised parents of the child. In the French context of anonymous birth, the privacy and secrecy
118 “Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.”
Consanguinity: Maternity and Paternity
of persons involved in is heavily protected. As the relation between the mother and the child was never affirmed, there is nothing that would link a person like Odièvre to her biological mother, or to her biological siblings with whom she wanted to establish links in search of her identity. In Kearns, the mother claimed that she did not have a correct impression about the period of time within which she could claim her child back, and thus tried to convince the French courts that her consent to giving the child up for adoption should be concerned invalid. In her case the legal relation between the child and her adoptive parents had already been established. In both Odièvre andKearns, the principle of not overturning administrative decisions is given great importance. What Law has joined together, mere mortals must never separate.
Johnston,B., R. and J. andKeegan all illustrate the difficulties that have been in place in different European jurisdictions concerning the recognition of the potential for full parental subjectivity on unmarried men. Much in the same way as Marckx, they highlight the importance of recognising the potential of both unmarried men and women as relationally embedded individuals regardless of their legal status. All these complaints show the importance that status, in this case being an unmarried adult, has had in defining the possibility of becoming a legal parent to one’s child. Biological parentage, maternity or paternity, was not under dispute in any of these cases, but the message was that without the legal protection and standing that marriage could give, it could be both women or men who were not seen as full parental subjects. The effect, of course, was that children were left with less protection and privileges, such as rights to be acknowledged as the immediate relative of one’s mother, father or child or effects relating to the transmission of property.
As can be seen inOdièvre,Godelliand several paternity cases119 described above, the desire to discover more about one’s biological origins might be even more accentuated in adult age than when younger, as the European Court has noted in Jäggi v. Switzerland: “it must be admitted that an individual’s interest in discovering his parentage does not disappear with age, quite the reverse”120. In many of the paternity cases, the European Court has offered strong protection to the right to know one’s biological parentage and origins, but as seen inOdièvre, the legacy of the Napoleonic Code that has judged the conditionality of women as full parental subjects leaves children with little possibilities to find out enough to satisfy the will to know one’s origins. From Nedelsky’s perspective of restructuring relations through rights to protect the value of knowing one’s origins, the solution might be further accentuating the interest of the child over the interest of the parent to remain anonymous, as for example several civil society groups and organisation in France have advocated (see Ensellem 2004).
119Jäggi v. Switzerland, no. 58757/00, ECHR 2006-X,Phinikaridou v. Cyprus, no. 23890/02, 20 December 2007,Pascaud v. France, no. 19535/08, 16 June 2011.
120 SeeJäggi v. Switzerland, para 40.
Iacub argues that in the process of making all children equal in their relations to their parents, the maternal womb has replaced Napoleonic marriage as the “ideal institutional matrix” (2004: 333)121 and that instead of enhancing liberty and equality, the limits of constraint and inequality have merely assumed new forms of appearance. According to Iacub, the womb is no less arbitrary than marriage in demarcating the line between ‘true’ and
‘fictitious’ filiation: according to her, moralism concerning the family has not disappeared; it has just changed location (2004: 335). Taking the maternal womb as the point of reference in determining filiation has not made men and women equal in matters of procreation. Iacub argues in several passages of L’Empire du ventre that in the current system of positive and negative rights of procreation women have become the “sole masters of procreation”122 (2004:
338) – women have the ultimate right to decide, once pregnant, whether a child will be born or not, and whether they will keep the child or give it away for adoption, regardless of whether anonymous birth is available in a given jurisdiction or not. Furthermore, Iacub argues that the former inequalities between married and unmarried women have been replaced with inequalities between fertile and infertile women.
Iacub presents interesting points, but in her ultra-liberal ethos she seems to dismiss some important points of consideration. In her argumentation, Iacub presents a sharp division between ‘real’ and ‘fictitious’ filiation which does not seem to hold: she contrasts mothers who have given birth and become
‘real’ mothers in the spirit ofmater semper certa est and mothers who have resorted to ‘fictitious’ forms of creating ties of filiation through adoption or surrogacy arrangements. Her criticism of this divide misses its target, as adoption as a legally created and confirmed relation does not seem to be threatened by a stamp of ‘fictitious’ filiation. Judging by the relevant case law from the European Court, adoptive family relations, and legal relations within them in particular, emerge as the most valued form of family relations in situations of conflict. In Iacub’s utopia of reproduction, origins would have no importance (2004: 350). However, in real life, as for example relevant ECHR case law shows, origins matter to many people and they are willing to go to great lengths to find out more about them. Their experiences should not be overlooked, regardless of the reasons they have for an interest in knowing their origins, as not all act with a motivation related to financial gain, as the genealogical and “symbolic” relations discovered this way seem to be of importance. The question then is, how to construct a system where biological, legal, social and gendered relations would be in balance?
Iacub champions a logic of décisions procreatives, procreative decisions (2004: 352) where both men and women would be able to reject parenthood.
121 ”En prétendant égaliser le statut de tous les enfants vis-à-vis de leurs parents, on a substitué au mariage napoléonien, en tant que matrice institutionnelle idéale, le ventre maternel” (Iacub 2004:
333).
122 “… seules maîtresses de procreation”.
Consanguinity: Maternity and Paternity
If a child is born who is unwanted by one or both the consanguineous parents, a man has the possibility of avoiding fatherhood on the level of social relations and everyday life. However, in the legal realm this does not really exist: if he is pursued as the father of a child, he does not really have an option of not becoming a father except when it can be proven that he is not the man to be sought. Machado (2008) has offered an analysis of the practise of Portuguese courts where, in her terms, maternity has been subject to being ‘moralised’ and paternity to being ‘biologised’. This ties in with the debate on the importance of knowing one’s origins, but this might call for further distinction on the elements of ‘biologised’ paternity. Undoubtedly, with the advent of scientific proof in finding out who is genetically related to whom, in many cases the simple and uncontestable scientific ‘truth’ may be found out. But is the focus too much on mere genetics, what about the other aspects of ‘biological relations’ or consanguinity? Does it count who has been intimately involved with the mother at the time of conception, or who has shared the mother’s everyday life when she has been expecting the child?
Genetic relations offer an important, but by far not the only aspect of biological or consanguineous relations understood in a more comprehensive manner. DNA testing offers the possibility for finding out genetic truth, but it is not decisive in determining the existence of a legal relation between a father and a child: if enough time has passed and the child has been able to benefit from a lasting relation with a legally and socially attributed father, that is then what the relation between a father and a child rests on. Thus, a genetic relation as a marker of consanguinity lays the ground for establishing or de-establishing filiation when the foundations for this relation are still being laid.
The importance given to different forms of relatedness by different parties counts, too: a child, even as an adult, cannot be obliged to undergo DNA testing, there has to be a joint interest in establishing the genetic truth between the father and the child. From a Nedelskyan viewpoint, scientific proof may help in restructuring relations in the form of offering information on one’s origins, which may still be completely separate to establishing legal relations with a person with whom one shares genetic substance.
6 FILIATION: ADOPTION AND ASSISTED PROCREATION
Becoming nomadic unfolds by constructing communities where the notion of transcience, of passing, is acknowledged in a sober secular manner that binds us to the multiple “others” in a vital web of complex inter-relation. Kinship systems and social bonding, like political agency, can be rethought differently and differentially, moving away from the blood, earth and origin of the classical social contract. A nomadic politics of becoming-minoritarian is a posthumanist, vitalist, nonunitarian, and yet accountable recomposition of a missing people.
Rosi Braidotti (2012: xvii)
In this chapter, relevant case law from the European Court concerning adoption and assisted reproduction is analysed in order to see who may adopt and what kind of different forms of adoption take place, who may have access to assisted reproduction and/or the use of donated gametes and what kind of implications these types of family formation have on how family relations are seen in a European culture of human rights. Adoption and assisted reproduction are modes of creating family relations which both give rise to fervent debate on who is entitled to benefit from these practices in order to become a parent. Who, a couple or an individual, may adopt a child and create a legal relationship with her/him and in what kind of circumstances? Who may obtain access to assisted reproduction services, be they State-subsidised or not? What can and cannot be done with sperm, ova, embryos and wombs in assisted reproduction?
There is a variety of cases in the case law of the European Court that touch upon adoption in different forms. Apart from its social, everyday nature, adoption is a legal relation par excellence. Adoption takes many forms: full adoption or second-parent adoption by a married opposite-sex couple, which is the norm shared and held dear across Member States of the Council of Europe. Depending on the legislation in place in a given State, adoption may be open to cohabiting couples, second-parent adoption and either of these might be open to opposite-sex couples, same-sex couples or both. As noted by the 19th century scholar Henry Maine (1861), cited by David Schneider (1987:
172), adoption is an age-old, even ancient mode of constructing legally and socially binding family relations in the absence of a genetic link. It does not always concern a married opposite-sex couple adopting a child they have not known beforehand. Adoption may take place within a household when a step-parent wishes to adopt his or her spouse’s or partner’s child (second-step-parent adoption), by a single person or within an extended family.
In the first two sub-chapters, I analyse who may adopt within and according to the law of a certain State, under what conditions and to what
Filiation: Adoption and Assisted Procreation
extent these claims can be addressed as human rights issues. Some of the judgements and decisions discussed in this chapter might involve international adoption, but the focus is on the characteristics and the evaluation of the potential adoptive parental subject and what kind of relations s/he is allowed to create. Complaints to the European Court dealing with the right to bring an internationally adopted child over a border1 might be related to judgements discussed in this chapter, but they remain outside the scope of this analysis. A number of complaints may be found in the ECHR system relating to adoption or fostering within an extended family, for example between aunts or uncles and nieces or nephews2. Second-parent adoption forms an intriguing field of analysis that has been under recent scrutiny in the European Court of Human Rights especially from the point of view of same-sex couples, namely female couples. In the Grand Chamber judgement of X.
and others v. Austria from 20133 and the judgement of Gas and Dubois v.
and others v. Austria from 20133 and the judgement of Gas and Dubois v.