Johanna Westeson - The ICHRP

extend the scope of this Convention to different sex couples and same sex couples who are
living together in a stable relationship. (Art. 7) 286
This new provision not only allows state parties to extend authorization of adoption to
married or registered same-sex couples, but also acknowledges that couples that are neither
married nor registered partners may have an interest in joint adoption. In other words,
while not mandating a broader family concept, the Convention acknowledges that it is in
the interest of many states to promote such family concept. The provision shows that the
Convention will not stand in the way of this development, which is framed in basically
positive terms.
3. European Union
European Union binding law
Family law is not covered by EU jurisdiction. Thus, with regard to the extension of spousal
rights and benefits to same-sex or unmarried couples, and access to adoption and ART, the
EU gives wide discretion to domestic family law. However, in the context of the increasing
importance awarded non-discrimination in the Union, EU bodies have started to address
certain limited aspects of family law issues. When cohabitation or registered partnership
have been equated to marriage by domestic law in a member state, EU law now requires
that those couples should have the same rights as married couples, both in that member
state and, under certain conditions, in other member states.
In 2004, the EU adopted a new directive on freedom of movement (one of the fundamental
rights recognized by the EU for citizens of member countries) within the Union. The
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on
the right of citizens of the Union and their family members to move and reside freely
within the territory of the Member States, 287 replaces a great number of earlier directives
on free movement within the Union. For the purposes of this report, the main relevance of
this directive concerns the right of non-conventional family members who are not EU
citizens to freely move and to reside within the Union. Here, there is both an attempt to
include registered partners in the definition of ‘family member,’ and also to extend a
certain level of freedom of movement to unmarried/unregistered partners.
First, the Directive recognizes as a ‘family member,’ in addition to spouse and direct
descendants and dependants,
the partner with whom the Union citizen has contracted a registered partnership, on the basis
of the legislation of a Member State, if the legislation of the host Member State treats
registered partnerships as equivalent to marriage and in accordance with the conditions laid
down in the relevant legislation of the host Member State. (Art. 2 (2) (b))
286 The revised Convention retained the statement that “[t]he law shall permit a child to be adopted […] by
one person” (Art. 7.1).
287 OJ L 158, 30.4.2004, amending Regulation (EEC) No 1612/68. For a guide to interpretation of the
Directive, see “Right of Union citizens and their family members to move and reside freely within the Union.
Guide on how to get the best out of Directive 2004/38/EC.” European Commission, 2004. Available at
http://ec.europa.eu/commission_barroso/frattini/archive/guide_2004_38_ec_en.pdf. Last visited on 18
February 2010.
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