Instantie

Europese Commissie Rechten van de Mens

Samenvatting

Twee vrouwen wonen sinds 1984 samen en sinds 1986 hebben zij samen de
verzorging van een van beider kinderen. Het kind is via kunstmatige
inseminatie geboren. Een homoseksuele relatie valt volgens de Commissie, niet
binnen de reikwijdte van het ‘gezinsleven’ zoals bedoeld in art. 8 EVRM. Ook
is er geen strijd met art. 14 EVRM omdat het in casu gaat om ongelijke
gevallen, namelijk homoseksuele en heteroseksuele relatie. Het onthouden van
de mogelijkheid om familierechtelijke banden te vestigen door de meemoeder
met het kind wordt niet gezien als een inbreuk op hun gezinsleven, evenals
het onthouden van gezamenlijke ouderlijke macht en … ze kunnen toch bij
elkaar wonen. Zie ook HR 24-2-1989, RN 1989, 40.

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THE FACTS

The applicants are Dutch nationals born in 1956, 1949 and 1986 respectively.
They reside in Nijmegen, the Netherlands. The first and second applicant have
a stable lesbian relationship since December 1983 and consider themselves to
be the social parents of the third applicant, born on 20 November 1986, who
biologically is the second applicant’s son. Before the Commission the
applicants are represented by Mr. A.W.M. Willems, a lawyer practising in
Amsterdam, the Netherlands.

The facts as submitted by the applicants may be summarised as follows.

The third applicant is born out of wedlock by means of artificial
insemination. The first and second applicant share the parental tasks between
them.

In 14 January 1987 the first and second applicant requested the Nijmegen
District Court (Kantonrechter) to be vested with the parental authority
(ouderlijke macht) over the third applicant. This request was rejected on 4
September 1987.

On 25 February 1988 the Arnhem Regional Court (Arrondissementsrechtbank) on
appeal declared the applicant’s request inadmissible.

On 24 February 1989 the Supreme Court (Hoge Raad) dismissed the applicant’s
plea of nullity. It held, like the lower courts, inter alia, that unmarried
parents can be vested with the parental authority over a minor of both have
legal family ties with the child (in familierechtelijke betrekking staan
tot). In the present case only the biological mother (second applicant), who
legally is the guardian of the third applicant has legal family ties with her
son. The first applicant has no legal ties with the child nor can she
establish those ties through recognition (erkenning) since this is impossible
for a woman under Dutch law. The Supreme Court furthermore found that the
interference with the applicant’s right to respect for their family life was
justified under para. 2 of Article 8, without specifying on which ground.

Legal family ties can be established through recognition (erkenning) of the
child but according to Article 221 Book 1 of the Civil Code (Burgerlijk
Wetboek), only a man, whether the biological father or not, can recognise a
child.

COMPLAINTS

1. The applicants complain that the refusal to vest the first applicant with
the parental authority over the third applicant constitutes an unjustified
interference with their right to respect for their family life and their
private life. They invoke Article 8 of the Convention.

2. The applicants further complain that they are discriminated against as,
uinlike heterosexual couples, they cannot enjoy their rights under Article
8 of the Convention with regard to parental authority. They also complain
that the resulting difference in legal status between the third applicant and
legitimate children amounts to discrimination. They invoke Article 14 of the
Convention in conjunction with Article 8.

THE LAW

1. The applicants complain that their right to respect for their private and
family life has unjustifiedly been interfered with in that the first
applicant could not be vested with the parental authority over the third
applicant. They invoke Article 8 of the Convention which reads, insofar as
relevant, as follows:

‘1. Everyone has the right to respect for his private and family life …

2. There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in
a democratic society in the interests of national security, public safety or
the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others.’

The Commission must first determine whether the factual situation at stake
is such as to enjoy the protection afforded by Article 8.

It is true that this provision protects the ‘legitimate’ as well as the
‘illegetimater’ family, i.e. the relationship between unmarried parents and
their child(ren) (see Eur. Court H.R., Marckx jugdment of 13 June 1979,
Series A No. 31, p. 14 para.31). Its object is according to the Court,
‘essentially’ that of protecting the individual against arbitrary
interference by the public authorities. Nevertheless, the Article does not
merely compel the State to abstain from such interference. In addition to
this primarily negative undertaking, there may be positive obligations
inherent in an effective ‘respect’ for family life (loc.cit.).

The Commission recalls that it has found in the past that, despite the
evolution of attitudes towards homosexuality, a stable homosexual
relationship between two women does not fall within the scope of the right
to respect for family life ensured by Article 8 of the Convention (No.
11716/85, Dec. 14.5.86, D.R. 47 p. 274). The relationship between the first
and the second applicant acoordingly also falls outside the scope of Article
8 insofar as it protects the right to respect for family life.

The Commission further notes that the relevant legislation in itself does not
prevent the three applicants from living together as a family. The only
problem in the present case is the impossibility for the first applicant to
establish legal ties with the third applicant which may become of practical
importance should the natural mother die or should the relationship between
the two adults end otherwise. However, the Commission is of the opinion that
the above described positive obligations of a State under Article 8 do not
go so far as to require that a woman such as the first applicant, living
together with the mother of a child and the child itself, should be entitled
to get parental right over the child. The Commission therefore considers that
there has been no interference with the applicants’ rights to respect for
their family life.

It follows that the application in this respect is manifestly ill-founded
within the meaning of Article 27 para. 2 of the Convention.

As regards private life, the Commission decided in the past (see No. 9369/81,
Dec. 3.5.83, D.R. 32 p. 220, No. 11716/85, Dec. 14.5.86, D.R. 47 p. 274 and
No. 14753/89, Dec. 9.10.89, unpublished) that the relationship of a
homosexual couple constitutes a matter affecting their private life. However,
the Commission considers that the parental authority over the third applicant
does not entail any restriction in the applicants’ enjoyment of their private
life. The Commission therefore finds that in the present case there has been
no interference with the applicants’ right to respect for their private life.

It follows that the application in this respect must also be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2 of the
Convention.

The applicants also claim to be the victims of discrimination in that, unlike
heterosexual couples, they cannot enjoy their rights under Article 8 with
regard to parental authority, whereas in other fields Dutch law makes no
distinction between homosexual and heterosexual couples.

They further complain that the third applicant is also discriminated against
on the ground of his birth and status in comparison with legitimate children.
They invoke Article 14 of the Convention in conjunction with Article 8.

The Commission notes that, as regards parental authority over a child, a
homosexual couple cannot be equated to a man and a woman living together.

It follows that the application, in this respect also, is manifestly
ill-founded within the maening of Article 27 para. 2 of the Convention.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Deze zaak is gegarandeerd door het proefprocessenfonds Rechtenvrouw.

Rechters

Kruger, Nìrgaard