JURI

Committee on Legal Affairs (JURI)

Introduction

“If you are parent in one country, you are parent in every country”. Those were the words of Ursula von der Leyen, the President of the European Commission, in her address to the State of the Union in September 2020.³ This statement, accompanied by the launch of the-landmark EU LGBTIQ Equality Strategy 2020-2025, sparked hope that the EU would become a safer and more equal space for queer individuals and their families. However, while there has been significant progress towards achieving this vision,⁴ everyday reality remains difficult for hundreds of rainbow families, particularly regarding their right to freedom of movement.⁵

The EU is committed to equality and freedom of movement for all its citizens, as outlined in the Charter of Fundamental RIghts of the EU⁶ and the Citizens’ Rights Directive.⁷ However approximately two million children⁸ and their LGBTQIA+ parents face significant legal challenges when traveling or relocating between Member States. Parenthood recognized in one Member State is not guaranteed to be acknowledged in another, leaving rainbow families vulnerable and depriving their children of their most fundamental rights, such as their right to maintain direct contact with both of their parents and their right to family life.⁹ The consequences of a child being separated from a parent or legal guardian when travelling to a different country are not merely legal or administrative; they also constitute a deeply traumatic and invasive event for every member of the family.¹⁰

The EU’s current legal framework regarding parenthood recognition fails to adequately protect the rainbow families when crossing borders within the EU. As family law remains under the jurisdiction of each Member State (for cases relevant to its territory), legal discrepancies related to issues such as the legalisation of same-sex marriages, adoption procedures by LGBTQIA+ individuals, and surrogacy make it difficult to imagine a common, inclusive path ahead. At the same time, discrimination against queer individuals remains concerningly high within the EU, with 55% of LGBTQIA+ people experiencing hate-motivated harassment in 2023.¹¹ Even with the European Court of Justice ruling in favor¹² of a rainbow family’s right to relocation and recognition of parenthood within the EU in 2021, there is still a long way to go before the EU is the ‘LGBTIQ Freedom Zone’¹³ that will truly protect queer individuals and their families.

Key Stakeholders

• Member States are the 27 countries that make up the European Union. Having full jurisdiction over family law, they bear the sole responsibility of defining familial ties and affairs on a national level.¹⁴ They are subject to support and coordination¹⁵ by the European Commission in cases regarding family status that require cross-border cooperation, also being required to recognise related decisions made by courts of other States in relevant cases.
• The Directorate-General for Justice and Consumers (DG JUST) is the European Commission’s branch dedicated to drafting and overseeing the implementation of policies related to protecting individual rights and freedoms. 
• The European Court of Justice (CJEU) is the Union’s highest judicial authority, tasked with ensuring that EU law is interpreted and applied consistently across all Member States, as well as resolving legal conflicts between EU institutions, Member States, and individuals.
• The Council of Europe (CoE) is one of the biggest human rights organisations in Europe, and overlooks many of the EU actions regarding human rights. One of the Council’s most significant bodies is the European Court of Human Rights (ECtHR), which reviews cases of violations of the civil and political rights set out in the European Convention on Human Rights, including the recognition of parenthood. 
• The European Union Agency for Fundamental Rights (FRA) is one of the Union’s decentralised agencies, focused on providing independent support and advice to European bodies regarding the advancement of fundamental rights by gathering relevant data from all over Europe. Through their surveys, such as the 2024 ‘LGBTIQ at a crossroads: progress and challenges’ analysis,¹⁶ they highlight the incidence and relevance of issues faced by the queer community in recent years, including the recognition of parenthood for rainbow families.
• Non-Governmental Organisations (NGOs), advocating for equality and raising awareness about the challenges faced by the LGBTQ+ community, play a crucial role in safeguarding LGBTQIA+ rights. Some of the most significant NGOs supporting rainbow families in exercising their right to free movement across the EU include the International Lesbian, Gay, Bisexual, Trans and Intersex Association – Europe (ILGA-Europe), Transgender Europe (TGEU), the Network of European LGBTIQ* Families Associations (NELFA), and the Associate Confederation of Family Organisations in the European Union (COFACE Families Europe), among others.

Fundamental Challenges

Lack of Harmonisation

At the very heart of the issue lie the significantly different approaches with regards to family law between Member States; with the definition of what constitutes a family varying, parenthood recognised in one country could be completely disregarded in another. On one hand,  nations such as the Netherlands¹⁷ and Sweden¹⁸ have embraced inclusive definitions of parenthood, while others—such as Hungary¹⁹—have introduced legislations that explicitly restrict the recognition of LGBTQIA+-parenthood. With only ten countries²⁰ in Europe allowing the automatic recognition of co-parenting regardless of one’s sexual orientation or gender identity, rainbow families may find their claims to parenthood void when travelling to other Member States If a state challenges the legality of a (previously recognised) union between LGBTQIA+ individuals, with a notable such case²¹ occurring in Italy, a child could effectively be rendered ‘stateless’ due to the invalidation of its birth certificate.

Aiming to address the issue, in a landmark ruling in Case C-490/20 (Stolichna obshtina, rayon ‘Pancharevo’), the CJEU determined that when one EU country recognises a child’s familial ties, then every other Member State should do the same in order to protect the child’s fundamental rights.²² Regardless, the effective implementation of this decision could take years to become a reality, with Member States delaying or even outright refusing the procedures of its inclusion in their national legislation.²³

Through its policy proposals and directives, such as the LGBTIQ Equality Strategy 2020-2025, the EU has long advocated for the necessary amendments to be made in Member States’ national legislatures, promoting a more uniform and equal approach towards the recognition of parenthood for rainbow families. However, given that these measures are not binding, these gaps in the Union-wide approach are perpetuated, leaving rainbow families in a limbo, uncertain or discouraged from traveling/relocating to another country.

Discrimination against LGBTQIA+ individuals

While the EU has been a front-runner in efforts towards societal acceptance and integration of queer individuals, discrimination against the LGBTQIA+ community continues to be ever-present, even in progressive European societies.²⁴ In recent surveys conducted by the European Commission and the FRA, 36% of LGBTQIA+ respondents felt discriminated against in their everyday life in 2023.²⁵ Rainbow families and their children are exposed to many forms of discriminatory beliefs and actions in their day-to-day lives, ranging from inequalities in their workplace, education, access to medical care and justice, to serious threats and even physical violence.²⁶ Discrimination can have dire consequences on the mental and physical health of LGBTQIA+ citizens,²⁷ while discriminatory attitudes can also be an obstacle against the introduction of inclusive legislation. For example, the Romanian “Coalition for Family” campaign pushed for a constitutional amendment that would prohibit same-sex marriages, claiming that they are incompatible with the country’s ‘traditional values’.²⁸

Transgender parents, or those who wish to become parents, not only experience those challenges, but also a plethora of issues related to their gender identity. With only four EU countries recognising trans parenthood,²⁹ they can often be forced to choose between being recognised as biological parents and having their gender identity legally recognised.³⁰ Furthermore, when travelling within the EU, trans parents are often faced with complex or non-existent gender recognition procedures, while their legal gender recognition does not always extend to kinship documents, thus creating discriminatory conditions for them and their children.³¹

Obstacles to the creation of a family

Creating a family can prove to be a difficult and arduous process for LGBTQIA+ individuals, who are faced with limited options. Joint adoption by same-sex couples is legal in just fourteen countries, while step-adoption is legitimate in seventeen. Some Member States such as Hungary³² and Poland³³ have imposed strict bans against adoption by LGBTQIA+ individuals, also not recognising adoptive LGBTQIA+ parenthood established in another country.³⁴ Similar issues are existent for LGBTQIA+ couples that attempt to access assisted reproductive technologies (ARTs) in order to create a family,³⁵ with less than half of Member States allowing lesbian couples to utilise them.³⁶

STUDY BY THE POLICY DEPARTMENT FOR CITIZENS’ RIGHTS AND CONSTITUTIONAL AFFAIRS

Obstacles to the Free Movement of Rainbow Families in the EU

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Measures in place

Article 21(1) of the Treaty on the Functioning of the European Union (TFEU)³⁷ clearly states that: ‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States {…}’, while Article 7 of the EU Charter of Fundamental Rights (CFR) establishes that ‘everyone has the right to respect for his private and family life {…}’.³⁸

In 2004, the EU Free Movement Directive was applied, aimed to clarify the conditions required for exercising the right of free movement for EU citizens and their family members.³⁹ However, the Directive fails to fully uphold the rights of rainbow families, since it includes marriage or a registered partnership as a requirement for its implementation whereas several Member States, such as Poland and Bulgaria, do not recognise a partnership between same-sex individuals.⁴⁰ Moreover, the Directive fails to specifically define the terms ‘parents’ and ‘children’, allowing legislative interpretations that are often hostile to rainbow families by certain Member States.⁴¹

Introduced in November 2020, the LGBTIQ Equality Strategy 2020-2025—the first ever strategy aiming to shape an equitable Union—was adopted.⁴² The strategy consists of four pillars: tackling discrimination, ensuring safety, building LGBTQIA+-inclusive societies, and ensuring the Union is a pioneer in global equality. It also includes specific measures focusing on safeguarding the rights of rainbow families and updating the existing guidelines on free movement. The September 2024 Report on the Implementation of the strategy, made clear that whilst there has been significant progress towards a ‘Union of Equality’, there is still a lot to be done.⁴³

Intending to specifically tackle the issue of cross-border parenthood recognition, the European Commission introduced the Proposal for the Council Regulation on Matters of Parenthood in December 2022.⁴⁴ While not making changes to the family laws of each Member State, the Commission suggested that a child’s parental ties should be recognised regardless of the manner of its conception or birth (i.e. through surrogacy), and stated that parenthood should not be refused in a way that would be in breach of the EU’s CFR (i.e. discrimination based on sexual orientation).

Additionally, the proposal included the introduction of the European Certificate of Parenthood; an optional online document, issued by the family’s home Member State upon request, that would be available in every EU language and would be acceptable as proof of parenthood in all Member States. Even though the proposal was also supported by the European Parliament,⁴⁵ it is yet to be adopted; the proposal requires  unanimous approval by the Council of the EU, but at least Hungary and Poland are openly opposing it.⁴⁶ If you wish to learn more about the proposal, you can watch the following video:

Outlook

In 2025, the EU has a truly significant opportunity to strengthen its commitment towards equality; In the political guidelines for the next European Commission 2024-2029, President von der Leyen announced an updated strategy on LGBTIQ equality.⁴⁷ As such, there is a lot to be considered: What can the EU learn from the LGBTIQ  Equality Strategy 2020-2025, in order to provide more holistic solutions to the issues the queer community faces? How can the EU best tackle the issue of cross-border recognition of parenthood for rainbow families?

As far as the EU has come, there still exist stark disparities in the recognition of LGBTQIA+ rights between its Member States, as highlighted in the Rainbow Map 2024. Taking a closer look at the map, where does your own country stand? What protections or court rulings are missing from its legislature, and how do they reflect on the everyday reality of LGBTQIA+ individuals and their families?

MAP DEPICTING THE RECOGNITION OF LGBTQIA+ RIGHTS IN EUROPE, BY ILGA-EUROPE

Rainbow Map 2024

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FOOTNOTES

1. ILGA-Europe (2022). How baby Sara and her moms have pushed forward the rights of all rainbow families across the EU. Link ↩︎
2. TGEU (2021). Stuck on the swing: experiences of trans parents with freedom of movement in the EU. Link ↩︎
3. European Commission (2020). State of the Union 2020. Link ↩︎
4. Laura Eigenmann (2021). “This Is a Union of Values”: The Rise of the LGBTI Rights Norm as Part of the EU’s Identity Construction. Link ↩︎
5. All Out. EU: Don’t leave your rainbow children stateless. Link ↩︎
6. Charter of Fundamental Rights of the European Union (2012/C 326/02). Link ↩︎
7. Directive 2004/38/EC. Citizens’ Rights Directive. Link ↩︎
8. European Parliament (2023). Recognition of parenthood in the EU: no discrimination against children’s rights. Link ↩︎
9. Charter of Fundamental Rights of the European Union (2012/C 326/02). Link ↩︎
10. Coscini, V. (2024). Parenting Discrimination and Children’s Rights in lgbtqia+ Families: A Review of International Human Rights Decisions. Link ↩︎
11. FRA (2024). LGBTIQ at a crossroads: progress and challenges. Link ↩︎
12. CJEU (2021). Judgment in Case C-490/20 Stolichna obshtina, rayon ‘Pancharevo’. Link ↩︎
13. European Parliament (2021). Parliament declares the European Union an ‘‘LGBTIQ Freedom Zone’’. Link ↩︎
14. European Commission. Areas of EU action. Link ↩︎
15. European Commission. Overview of family matters. Link ↩︎
16. FRA (2024). LGBTIQ at a crossroads: progress and challenges. Link ↩︎
17. BSS Advocaten. Legal Parenthood. Link ↩︎
18. RSFL (2022). Legal Parenthood. Link ↩︎
19. Polgári, Eszter; Dombos, Tamás (2020). A New Chapter in the Hungarian Government’s Crusade Against LGBTQI People. Link ↩︎
20. ILGA-Europe (2021). 6 things you didn’t know about rainbow family rights in Europe. Link ↩︎
21. Le Monde (2024). Italy’s lesbian couples fight to retain their parental status. Link ↩︎
22. Pink News (2021). All EU nations must recognise children of same-sex parents, court rules in ‘huge step for LGBT+ families’. Link ↩︎
23. ILGA-Europe (2022). How baby Sara and her moms have pushed forward the rights of all rainbow families across the EU. Link ↩︎
24. FRA (2020). A long way to go for LGBTI equality. Link ↩︎
25. FRA (2024). LGBTIQ at a crossroads: progress and challenges. Link ↩︎
26. Healthy Talbot (2020). What is LGBTQ Discrimination? Link ↩︎
27. FRA (2024): Harassment and violence against LGBTIQ people on the rise. Link ↩︎
28. Politico (2017). Romania ‘turns illiberal’ with moves against gay marriage. Link ↩︎
29. ILGA-Europe (2024). Family – Rainbow Map. Link ↩︎
30. TGEU (2022). TGEU Releases Its Second Report on Trans Parenthood. Link ↩︎
31. TGEU (2021). New Report on Trans Parents and Freedom of Movement in the EU. Link ↩︎
32. BBC (2020). Hungary bans same-sex couples from adopting children. Link ↩︎
33. Reuters (2021). Poland to ban gays from adopting, even as single parents. Link ↩︎
34. European Network on Statelessness (2024). Mutual recognition of parenthood across the EU could prevent statelessness. Link ↩︎
35. Leibetseder, Doris (2018). Queer and trans access to assisted reproductive technologies: A comparison of three EU-States, Poland, Spain and Sweden. Link ↩︎
36. European Data Journalism Network (2021). More than half of European countries prohibit access to assisted reproduction for lesbians and almost a third do so for single women. Link ↩︎
37. Treaty on the Functioning of the European Union – PART TWO: NON-DISCRIMINATION AND CITIZENSHIP OF THE UNION – Article 21. Link ↩︎
38. Charter of Fundamental Rights of the European Union (2012/C 326/02). Link ↩︎
39. Directive 2004/38/EC. Citizens’ Rights Directive. Link ↩︎
40. ILGA-Europe (2024). Rainbow Map. Link ↩︎
41. Tryfonidou, Alina (2019). Rainbow families and EU Free Movement Law. Link ↩︎
42. LGBTIQ Equality Strategy 2020-2025. Link ↩︎
43. European Commission (2024). Report on the Implementation of the LGBTIQ Equality Strategy 2020-2025. Link ↩︎
44. European Commission (2022). Recognition of Parenthood between Member States. Link ↩︎
45. European Parliament (2022). Recognition of parenthood: MEPs want children to have equal rights. Link ↩︎
46. The Brussels Times (2024). Some EU member states continue to oppose a European Certificate of Parenthood. Link ↩︎
47. Ursula von der Leyen (2024). Political Guidelines for the next European Commission 2024-2029. Link ↩︎