Greece Achieves Marriage Equality: What About Full Parental Rights for LGBTQI Persons?

by | Apr 11, 2024

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About Maria-Louiza Deftou

Dr Maria-Louiza Deftou is an Adjunct Lecturer at the Law School of the National and Kapodistrian University of Athens and a Research Fellow at the Marangopoulos Foundation for Human Rights. She is also an active researcher at the Athens Public International Law Center (AthensPIL). Her work lies on the field of international human rights law with a particular emphasis on the interplay between human rights and other fields of law (e.g. migration law, law of the sea, environmental law et al.).

LGBTQI rights are far from being universally accepted. On 16 February 2024, a new bill for LGBTQI rights was voted by the Greek Parliament allowing same-sex couples to marry and adopt children, making Greece the 36th State around the globe and the 16th EU Member State to legalise same-sex marriage. Amidst fierce opposition by the Greek Orthodox Church and far-right voices within the Parliament, 176 MPs voted in favour of the landmark legislation that brings significant amendments to Greek family and relevant labour law in a bid to eliminate existing inequalities suffered by the LGBTQI community in both law and in life. Nevertheless, the legislation still falls short in providing full substantive equality for LGBTQI families.

What the Law Provides

The new Law 5089/2024 amends the relevant provisions of the Greek Civil Code, granting same-sex couples not only the right to marry but also the right to adopt children, as is currently the case for heterosexual partners. Since 2015, same-sex couples only had the right to enter civil partnerships without being able to adopt.

Pursuant to the new bill, same-sex parents who have a child together will be also entitled to parental leaves and benefits. The existing protection against dismissal for female employees during their pregnancy (or for 18 months after childbirth), and for father employees for six months after childbirth, now applies to same-sex spouses and parents as well. In addition, the Law regulates the recognition of Greek citizens’ marriages contracted abroad as well as the parenthood emanating from the adoption by same-sex parents. Same-sex couples in a civil partnership may also get married within a year from the passing of the new bill and declare their wish to have their marriage recognised retroactively.

All the above legislative changes foster marriage equality and are expected to raise the visibility of the LGBTQI community within Greek society, which was previously divided.

The Law in Context

Despite the lack of consensus in Europe when it comes to same-sex marriage, the recent adoption of the Greek marriage equality bill comes in support of the current wave of legal recognition of  same-sex partnerships in the region [see e.g. Germany, Malta, Slovenia, Estonia]. Ιndeed, both EU law (see, i.e, Art.9 EU Charter) and the ECHR, as interpreted by the European Court of Human Rights (ECtΗR), do not impose a strict obligation for the Member States to open civil marriage up to same-sex couples. Having acknowledged that same-sex relationships fall within the concept of “family life” under Article 8 ΕCHR, the ECtHR has admitted that there is a continuing evolution pertaining to the institution of marriage and has granted meticulous importance to the ongoing international movement towards the legal recognition of same-sex unions, which fits squarely with a more inclusive understanding of “marriage” under Article 12 ECHR. The same applies to the recognition of LGBTQI parental rights that cannot be denied on discriminatory grounds without the State’s compelling justification.

What the Law Failed to Provide

Distinguished academics, legal experts, and civil society institutions have nonetheless warned that the legislation at hand excludes male partners from future parenthood through surrogacy, whereas this is a possibility for female couples who can make use of medically assisted reproduction (IVF or surrogacy) for medical reasons. Such an exclusion constitutes a blatantly different treatment of male same-sex couples that is likely to be brought before domestic courts and most importantly, before the ECtHR. The Government will then need to provide a weighty and persuasive argumentation as for which legitimate aim dictated such a lacuna. The new bill also leaves room for the unequal application of the presumption of parenthood for married same-sex parents. The latter presumption which explicitly applies to different-sex couples is not extended, in an analogous manner, to same-sex couples. As a result, the non-biological parent of a child born within same-sex marriage or civil union is not automatically recognised as the legal parent of the child. It remains to be seen whether the Greek legislator will revisit the relevant provisions to remedy the said inequalities in the foreseeable future and the potential role that the ECtHR has to play on the matter. In that case, this would not be the first time that the case law of the Strasbourg Court would have influenced Greek law-making as it was the Vallianatos and Others v Greece [GC] judgment in 2013, which triggered the amendment of the civil union law and its extension to same-sex couples (Law 4356/2015).

Extending marriage to same-sex partners marks a significant milestone in the fight for equality and acceptance and it is, therefore, welcomed as a long-awaited change for LGBTQI rights in the country. Awaiting new legislative or judicial developments, it is crucial that all interested parties, including the executive, the judiciary, and the LGBTQI community, work together to ensure proper implementation of the new law.

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