scholarly journals Adoption v. Surrogacy: New Perspectives on the Parental Projects of Same-Sex Couples

2021 ◽  
Vol 1 (1) ◽  
pp. 132-145
Author(s):  
Sara Tonolo
Keyword(s):  
Public Policy ◽  
Supreme Court ◽  
Criminal Code ◽  
Birth Certificates ◽  
Private International Law ◽  
Same Sex ◽  
Surrogate Motherhood ◽  
Best Interest ◽  
Same Sex Couples ◽  
Italian Law

Abstract In Italy all forms of surrogacy are forbidden, whether it be traditional or gestational, commercial or altruistic. Act n. 40 of 19/2/2004, entitled “Rules about medically-assisted reproduction”, introduces a prohibition on employing gametes from donors, and specifically incriminates not only intermediary agencies and clinics practising surrogacy, but also the intended parents and the surrogate mother too. Other penal consequences are provided by the Criminal Code about the registration of a birth certificate where parents are the intended ones, as provided by the lex loci actus (art. 567 of the Italian Criminal Code, concerning the false representation or concealment of status). Apart from the mentioned criminal problems, several aspects of private international law are involved. In the cases where national rules forbid the transcription of birth certificates for public policy reasons, specifically the prohibition of surrogacy, Italian Judges often seek solutions to enforce the status filiationis. In this case, the Italian Supreme Court intervenes in the debate, allowing the recognition of a foreign adoption order related to a procedure of surrogate motherhood in favour of a same-sex couple. Focusing on the recent evolution of the notion of international public policy the Supreme Court affirms that the inherent adoptive parental status acquired by a homogenitorial couple is not contrary to international public policy, when the effects of the act from which this status derives are not incompatible with the limits that cannot be exceeded constituted by the founding principles of the relational choices between intended parents and child (Article 2 of the Constitution, Article 8 ECHR), by the Best interest of the child as codified in the Italian Law 219/2012, by the principle of non-discrimination, by the principle of solidarity that is the basis of social parenting. Splitting the problem of the surrogacy, underlying the adoption order to recognize in this case, and narrowing the public policy exception, is highly evident the risk to suggest to same-sex couples to realize their parental projects putting in place the surrogacy within the legal systems where contemporary it is possible to carry out the adoption of the child born as a result of this procedure.

scholarly journals Comparative Analysis of ART in the EU: Cross-border Reproductive Medicine

2015 ◽  
Vol 8 (1) ◽  
pp. 5-23
Author(s):  
Gordana Kovaček Stanić
Keyword(s):  
Reproductive Medicine ◽  
Single Woman ◽  
Private International Law ◽  
Surrogate Motherhood ◽  
Best Interest ◽  
Embryo Donation ◽  
Same Sex Couples ◽  
Cross Border ◽  
Born Child ◽  
The Eu

The need for cross-border reproductive medicine exists for several reasons. Some are due to the fact that some states do not permit particular ART procedures; thus couples travel to the state where needed procedure is allowed (surrogate motherhood, embryo donation, posthumous fertilization). Other situations are due to the fact of who is entitled to ART procedures. In some states ART procedures are not allowed to same-sex couples or a single woman. The consequence of the cross-border reproductive medicine might be that the born child becomes parentless (“limping legal parentage”) and stateless. Since the best interest of the child is the paramount principle in contemporary family law, it is most important to find solutions for these situations. The most complicated issues are the consequences arising from international surrogacy arrangements. The Hague Conference on private international law is working on these issues trying to find the best solutions.

Same-Sex Relationships and Anglo-Canadian Choice of Law: An Argument for Universal Validity

1997 ◽  
Vol 34 ◽  
pp. 103-136
Author(s):  
Wendy A. Adams
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal Status ◽  
Supreme Court Of Canada ◽  
Private International Law ◽  
Same Sex ◽  
Choice Of Law ◽  
The Supreme Court ◽  
The Face

SummaryThe distinction between formal and essential validity in Anglo-Canadian choice of law regarding marriage is an illogical bifurcation that unnecessarily invalidates same-sex relationships contracted in foreign jurisdictions. The Supreme Court of Canada has recently reformulated certain rules of private international law, taking into account both the constitutional and sub-constitutional imperatives inherent in a federal setting and the need for order and fairness when co-ordinating diversity in the face of increasing globalization. Reform of the choice of law rules regarding the validity of foreign marriages should proceed accordingly with the result being that a marriage valid where celebrated is valid everywhere. No principled reason exists to deny recognition to same-sex relationships validly contracted in other jurisdictions, nor to differentiate between the rights and obligations arising from the legal status of same-sex and different-sex relationships.

scholarly journals SAME-SEX MARRIAGE AND THE SAME OLD CONSTITUTION*

2011 ◽  
Vol 14 (2 & 3) ◽  
pp. 2005
Author(s):  
Ronalda Murphy
Keyword(s):  
Supreme Court ◽  
Social Institution ◽  
Supreme Court Of Canada ◽  
Same Sex ◽  
Political Debate ◽  
Same Sex Marriage ◽  
Political Issues ◽  
Same Sex Couples ◽  
The Supreme Court ◽  
Do So

The Reference re Same-Sex Marriage1 is not a major opinion on the rights of same-sex couples in Canada, but it is nonetheless an important and fascinating case. There are only a few lines that are about the “rights” of same-sex couples. Did the Supreme Court of Canada “duck” the issue? Was the Court carefully gauging how much or little political capital it had and making a political decision to say as little as possible on this topic? The Court certainly displayed strategic brilliance, but it did not do so in the name of avoiding the “political” hot topic of same-sex marriage. It is factually difficult to maintain the view that the Supreme Court of Canada is loath to enter into this political debate. It has been the lead social institution in Canada in terms of responding to the claims of gays and lesbians to equality in law,2 and it has never been shy of dealing with topics simply because they involve controversial political issues.3 Rather, the Court’s brilliance lies in its minimalist and almost weary tone. This approach had the effect of taking the wind out of the sails of those opposed to same-sex marriage: the same-sex advocates definitely win the constitutional race, but they do so because according to the Supreme Court, there is no provincial constitutional headwind that can stop them. In short, provinces can complain all they want about the federal position in favour of same-sex marriage, but the wedding will go on despite and over their objections to the ceremony.

Atrocity stories and triumph stories

2014 ◽  
Vol 24 (2) ◽  
pp. 200-217 ◽  
Author(s):  
Mike Thomas
Keyword(s):  
Public Policy ◽  
Empirical Research ◽  
Policy Impact ◽  
Marriage Equality ◽  
Same Sex ◽  
Gay Couples ◽  
Same Sex Couples ◽  
Lesbian And Gay ◽  
Civil Partnership ◽  
The Uk

This paper investigates conflicting narratives available to lesbian and gay couples as a result of marriage and civil partnership. Whereas marginalisation may have made stories of exclusion particularly resonant for same-sex couples, marriage and civil partnership offer scope for new stories around inclusion and equality. Drawing on empirical research with married and civil partner same-sex couples in the UK, US and Canada, the paper contrasts couples’ atrocity stories with new stories about acceptance and inclusion. The paper argues that these new stories should be seen as triumph stories that point towards a tangible impact arising from marriage equality and civil partnership. However, the presence of atrocity stories alongside these triumph stories provides evidence of a more limited policy impact. In conclusion, the paper highlights the relevance of atrocity stories in an emerging area of public policy, as well as the likelihood of triumph stories being relevant in other contexts.

scholarly journals O przypadkach dokonanej transkrypcji aktów urodzenia dzieci par jednopłciowych

2021 ◽  
Vol 28 ◽  
pp. 131-161
Author(s):  
Michał Wojewoda
Keyword(s):  
The Other ◽  
Birth Certificates ◽  
Same Sex ◽  
Same Sex Couples ◽  
Civil Status ◽  
Polish Law

The article concerns the problem of birth certificates of children of same sex couples, which have been transcribed into the Polish register of civil status. Although such transcriptions, after the resolution of the Supreme Administrative Court of 2.12.2019, seem not to be allowed, a significant number of foreign certificates had already been transcribed beforehand. The author argues that there are limited grounds to eliminate such acts from the Polish register. Especially in cases, in which the transcribed birth act — generated in Poland — names the woman who gave birth to the child (which woman is always considered to be the mother according to Polish law), such acts can properly fulfill their role by proving the fact of the child’s birth and by explaining the motherhood. The fact that the other parent (of the same sex) is not mentioned at all or is mentioned only in an annotation to a birth act can be well reconciled with the rules of the Polish law.

The Intersection of LGBT Rights and Religious Beliefs in the United States

2019 ◽  
Author(s):  
Emily R. Gill
Keyword(s):  
United States ◽  
Supreme Court ◽  
Religious Beliefs ◽  
The United States ◽  
The Other ◽  
Equal Treatment ◽  
Same Sex ◽  
Same Sex Couples ◽  
The Supreme Court ◽  
Lgbt Individuals

Tension has long existed in the United State between the equality claims of LGBT individuals, on the one hand, and free exercise claims by those who hold that compelling equal treatment violates their convictions, on the other. This tension increased, however, after the United States Supreme Court extended marriage equality to same-sex couples nationwide. Equality advocates hold that antidiscrimination laws simply allow LGBT individuals to enjoy the same rights as others. Many religious advocates, however, believe that they are being prohibited from living out the implications of their conscientious beliefs. Neutrality between these conflicting claims cannot be achieved, as policies that appear neutral to one group appear non-neutral to the other. Private voluntary organizations are one site of conflict. Although private organizations should not typically be forced to reflect the values of the larger society, not all organizations are similarly situated within it. Groups such as the Boy Scouts should be able to exclude at will. Public authority does not itself always support the values of free and equal citizenship, and organizations may evolve over time as the Scouts itself has done. Organizations that exist within larger entities, however, fall into a different category. The Supreme Court was correct to uphold Hastings Law School in forcing the Christian Legal Society as a registered student organization to admit all comers. These groups also represent the values of a public entity and can continue to operate as independent entities if they so choose. The provision of services in connection with same-sex weddings and commitment ceremonies has been another site of conflict. In Craig v. Masterpiece Cakeshop (2015), the Supreme Court found narrowly that bakery owner Phillips could refuse to create cakes for same-sex wedding celebrations, as the state of Colorado had displayed animus toward Phillips’s religious beliefs. Commercial establishments, however, are public accommodations and generally should not be allowed to discriminate against customers on the basis of their identities. Discrimination against the activity or conduct of formal commitment is also discrimination against the identity or status of a same-sex couple. These kinds of cases do not admit of neutral solutions. Some suggest that those with religious reservations could advertise that they do not serve same-sex couples, but this is reminiscent of Jim Crow in the post–Civil War South. Jurisdictional pluralists suggest that the government designate a sphere of noninterference as a jurisdictional boundary that it will not cross. Thus individuals and associations with religious commitments would be free to pursue these interests with minimal interference. However, a prior authoritative structure must exist to define the nature and scope of this jurisdiction, just as the Constitution defines the relationships between the national government and the states. Applications for religious exemptions should not be treated more generously when they conflict with LGBT equality concerns than with equality claims based on race or gender. Although religious individuals and groups should be able to exercise their religious convictions within their areas of competence, in a liberal society and state they cannot define the limits of these areas.

What Obergefell v. Hodges Should Have Said

2020 ◽  
Keyword(s):  
Social Movement ◽  
Supreme Court ◽  
Constitutional Law ◽  
Gay Rights ◽  
Political Struggle ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
The Social ◽  
The Right

The authors of this book, sitting as a hypothetical Supreme Court, rewrite the famous 2015 opinion in Obergefell v. Hodges, which guaranteed same-sex couples the right to marry. In eleven incisive opinions, the authors offer the best constitutional arguments for and against the right to same-sex marriage, and debate what Obergefell should mean for the future. In addition to serving as Chief Justice of this imaginary court, the book's editor provides a critical introduction to the case. He recounts the story of the gay rights litigation that led to Obergefell, and he explains how courts respond to political mobilizations for new rights claims. The social movement for gay rights and marriage equality is a powerful example of how — through legal imagination and political struggle — arguments once dismissed as “off-the-wall” can later become established in American constitutional law.

After Obergefell: On Marriage and Belonging in Carson McCullers’s Member of the Wedding

2019 ◽  
pp. 131-144
Author(s):  
Sarah Song
Keyword(s):  
Supreme Court ◽  
Gay Rights ◽  
Court Ruling ◽  
Same Sex ◽  
Supreme Court Ruling ◽  
Same Sex Marriage ◽  
Civil Unions ◽  
Same Sex Couples ◽  
Temporal And Spatial ◽  
The Law

The 2015 U.S. Supreme Court ruling in favor of same-sex marriage in Obergefell v. Hodges was a historic day for gay rights as well as for the institution of marriage. The Court's decision led many of the states that introduced marriage equality prior to Obergefell to eliminate civil unions on the grounds that same-sex couples could now get married. A reading of Carson McCullers's novel The Member of the Wedding in the context of Obergefell reveals the shadow marriage casts over nonmarital affinities and relationships. McCuller's protagonist, Frankie, desires not to join the wedding as a member but to disrupt it. Through Frankie's wedding fantasies, McCullers illuminates forms of belonging that are ostensibly outside the law and that move across temporal and spatial boundaries, unseating marriage as the measure of all relationships.

The Use and Abuse of Definitions in Constitutional Law

ICL Journal ◽  
2015 ◽  
Vol 9 (4) ◽  
Author(s):  
Alec Walen
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Same Sex ◽  
Same Sex Couples ◽  
The Us ◽  
Us Supreme Court ◽  
Constitutional Right ◽  
Definition Of ◽  
The Right ◽  
Constitutional Meaning

AbstractJustice Roberts′s dissent in Obergefell v Hodges - the case in which the US Supreme Court found a constitutional right for same sex couples to marry - rested on the premise the Court cannot invoke the right to marry as a basis for changing the definition of marriage. But his argument works only if the Court has no obligation to find a constitutional meaning for the term. I argue here that it has such an obligation. I argue further that an analogy with the concept of ‘person’ throws light on how that obligation should work. And finally, I argue that the most plausible constitutional definition would include same sex couples.

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