Homosexuality and Child Custody through the Lenses of Law: Between Tradition and Fundamental Rights

Homosexuality and Child Custody through the Lenses of Law: Between Tradition and Fundamental Rights


Denise Amram



Values that define the personality of an individual first develop within the family environment. Anthropologists and sociologists[1]have amply demonstrated that the family is more suitable than any other social structure to balance the contrasting values of different communities.[2]Ethic, religious, and cultural values are inherent to the concept of the "family” while it reflects the social system at any given historical moment.[3] In fact, the "family” has always originated from a confrontation between traditional values at any given moment in time with alternative values searching for affirmation in the social context.


Social sciences influence legal studies, because they provide interpretative instruments contributing to the construction of definitions, which are relevant to providing for legal solutions and, simultaneously, linking individuals and their relationships with the social environment.[4] As a result, the western[5]family has experienced both the rise and the fall of some core principles, a phenomenon that can be attributed to the development of social habits, over centuries, which seem to have isolated family law from private law. As an example, it is worth mentioning both the decline of the concept of the indissolubility ofmarriage,the "Immunity Doctrine”,[6]and the affirmation – in the Italian system - of moral and legal equality between spouses and between legitimate and natural children.[7]


Within the context of family law, rights solicitations have developed (and are developing) into a larger social and legal process involving the promotion of civil and human rights. In this process, the affirmation of the principle of non-discrimination in the eyes of supranational institutions and European Union Law has played an important role. Within the EC framework, free movement inferred consequences in the debate about the evolution of the concept of the family and its different aspects within Member States.[8] In fact, free movement could be limited only by objective considerations and in proportion to the legitimate aim being pursued, and in order to facilitate it, other fundamental rights relating to the family have been recognised. Indeed in the case Grunkin and Paul,[9] theEuropean Court of Justice (ECJ) affirmed that "Article 18 EC precludes the authorities of a Member State, in applying national law, from refusing to recognise a child’s surname, as determined and registered in a second Member State in which the child – who, like his parents, has only the nationality of the first Member State – was born and has been resident since birth”.

The recent but not yet entirely developed process of the harmonisation of European Family Law arises from the possibility of affirming the very same rights in front of a supranational court/institution "denied” by the legal system of one’s country. This supranational dimension is in reality the driving force of legal innovation on these issues across Europe. However, this process has evolved in the context of free movement of goods, services, people (including people who migrate with their cultural background, values and ideas). Nonetheless, the growing recognition of human rights in Community Law – and in particular in the European Convention on Human Rights (ECHR) - is capable of reaching and indeed overtaking the limits of Community competition. In other words, the Europeanization process, as a consequence of globalisation, has also reaffirmed fundamental rights in decisions of the ECJ and the ECtHR.[10]


Likewise, other Member States have not pursued significant changes to the concept of the "family”: the actual debate in Italy arises from the acknowledgement of partnerships[11]originally intended exclusively for traditional families. On the one hand, this extension involves all the values belonging to the traditional western model of heterosexual couples and on the other hand the issue of the violation of the non-discrimination principle based on sexual orientation. The Italian debate[12]challenges the very notion of the family that has been closely linked to reproduction, reflecting the traditional question surrounding the homosexual family debate. The problem therefore emerges clearly: which are the legal instruments capable of justifying an expansion and revision of the family concept in Italy? How could fundamental rights and the removal of social barriers allow a similar process?

[1] Paola Ronfani, Il diritto e le nuove famiglie: una lettura sociologica di un rapporto complesso, Min. e giust., Rome, 2, 13-26 (2008); Maurice Godelier, Métamorphoses de la parenté, éd. Fayard (2005); Agnès Martial, L’anthropologie de la parenté face aux transitions familiales contemporaines: des interrogations en suspens, La Découverte - Travail, genre et sociétés, 158-163 (2005); Gérard Lucas, Quelques préalables à l’étude des parentalités homosexuelles, Revue française de psychanalyse, Vol- 67, 229-240, (2003).

[2] The topic has been first apprehended by social science. On these issues, see Douglas Laycock- Anthony R. Picarello – Robin Fretwell Wilson eds, Same-sex marriage and religious liberty: emerging conflicts, Lanham, Rowman & Littlefield Publishers (2008). Interdisciplinary legal scholars have further approached the argument through the lenses of other fields: see e.g. Nocholas Kasirer, The dance is one, Law and Literature, Los Angeles, Vol. 20, No. 1, 69–88 (2008).

[3] Masha Antokolskaia, Family law and national culture. Arguing against the cultural contraints arguments, in K. Boele Woelki, Debates in Family Law around the Globe at the Dawn of the 21st century, Intersentia, 37-51 (2009); Marie C. Celerier, La famille homoparentale: continuité ou rupture?, Champ psychosomatique, n. 38, 167-170 (2005); Françoise Héritier, Quel sens donner aux notions de couple et de mariage? A la lumiere de l’antropologie, Information sociales, n. 122, 6-15 (2005).

[4] See Norberto Bobbio, L’età dei diritti, Einaudi (1990).

[5] In this paper, "western” refers to the western culture and to the so-called Jewish and Christian roots of Europe. During the draft of the Treaty establishing a Constitution for Europe, an important debate arose regarding the opportunity of including those values in the Preamble. Even though no mention about God or Religion has been made in the official texts, we cannot avoid referring to ethical values deriving from the Christian culture in a matter as tricky as the one we are going to analyse. See Salvatore Patti, Tradizione civilistica e codificazioni europee, Riv. dir. civ., Padova, pp. 521-531 (2004); Lorenzo Leuzzi – Cesare Mirabelli Ed., Verso una Costituzione europea - Atti del Convegno Europeo di Studio, Roma 20-23 giugno 2003, Marco Editore, II (2003); Giovanni Reale, Radici culturali e spirituali dell’Europa – Per una rinascita dell’”uomo europeo”, Raffaello Cortina Editore (2003); Pontifical Lateran University, The common Christian roots of the European Nations: an international colloquium in the Vatican, Le Monnier (2002); Mary A. Perkins, Christendom and European Identity – The Legacy of a Grand Narrative since 1789, Walter de Gruyter (2004).

[6] The Immunity Doctrine meant that people belonging to the same family could not sue each other. An important Italian scholar compared the Family to an island that the sea of the law can only lap and never overstep. Carlo Arturo Jemolo, La famiglia e il diritto, Ann. Sen. Giur. Università di Catania, 1948, III, Italy.

[7] Italian Constitution articles 29 and 30. See also Philippe Malaurie, Hugues Fulchiron, La Famille, Paris (2009); Stephen M. Cretney, Judith Masson, Rebecca Bailey-Harris, Principles of family law, Sweet & Maxwell (2003); Katharina Boele.-Woelki, Brente Brat, Ian Curry-Sumner eds., European Family Law in Action, I – II- III, Intersentia (2003); Jacques Massip, George Morin, Jean-Luc Aubert, La réforme de la filiation, 3 Ed Defrénois (1976); Jean Carbonnier, Droit civil, tome 2, La famille, l’enfant, le couple, Paris (2002); Gillian Douglas,An introduction to family law, Oxford (2001). In a comparative perspective see Bea Verschraegen, v. Divorce, in International Encyclopedia of Comparative Law, Vol. 4, chapter 5.

[8] The ECJ and ECtHR assume a leading role, since nowadays they are the best equipped instruments to reflect the needs, sensitivity and habits of member citizens. See Michael Bogdan, Registred partnerships and EC Law, in K. Boele-Woellki – A. Fuchs ed., Legal recognition of same sex couple in Europe, Intersentia, 171-177 (2003) and Helen Toner, Immigration Rights of Same-sex couples in EC Law, ibidem, 178-193 and Bea Verschraengen, The right to private life and family life, the right to marry and to found a family, and the prohibition of discrimination, ibidem, 194-211; Patrizia De Cesari ed., Persona e Famiglia - Trattato di diritto privato dell’Unione Europea, Giappichelli (2008).

[9] ECJ, 14th Oct. 2008, Grunkin-Paul, case C-353/06, available on the website http://eur-lex.europa.eu. See also Matthias Lehmann, What’s in a name? Grunkin-Paul and beyond, in Yearbook of Private International Law, 10, 135-164 (2008). The case concerns a child who was born in Denmark and registered in accordance with Danish law under the compound surname Grunkin-Paul combining the name of his father and that of his mother, even though he was of German nationality. After moving to Germany, German authorities refused to recognise his surname as it had been determined in Denmark, since Art. 10 EGBGB establishes that the name of a person is subject to the law of his or her nationality.

[10] For a detailed discussion concerning the European process of the harmonisation of Family Law, see Katharina Boele-Woelki, Brente Brat, Ian Curry-Sumner I. eds., European Family Law in Action, I – II- III, Intersentia (2003). In fact, in 2001 an international group of scholars established the Commission on European Family Law (CEFL), who aimed "to launch a pioneering theoretical and practical exercise in relation to the harmonisation of family law” in Europe. See also Maria C. Andrini, Un nuovo diritto di famiglia europeo, Cedam, (2007) and Laura Tomasi, La tutela degli status familiari nel diritto dell’unione europea – Tra mercato interno e spazio di libertà, sicurezza e giustizia, Cedam, (2007)

[11] In Italy there is no legislation related to heterosexual couples, even if the EU legislator has referred to this principle in a number of persuasive acts and in the Directive 2000/78/CE, establishing a general framework for equal treatment in employment and occupation. See, Mark Bell, We are Family? Same-sex Partners and EU Migration Law, Maastricht J. of Eur. Comp. L., 335 (2002). See also § 6 The Principle of non-discrimination.

[12] See Francesco D. Busnelli, La famiglia e l’arcipelago familiare, Rivista di diritto civile, 509 – 529 (2002), Cesare M. Bianca, Dove va il diritto di famiglia?, Familia, 3-10 (2001), Gilda Ferrando, Il matrimonio gay, il giudice e il legislatore, Resp. civ. prev., 2344 – 2353 (2008).