EUOBSERVER / BRUSSELS - The European Commission says that existing EU law on freedom of movement gives adequate protection to same-sex couples. But the story of one family living in Paris shows how a mixture of confusion and prejudice is stripping some EU citizens of basic rights.
Kaisa, a 37-year-old Finnish journalist, has lived with her partner Claire, a French webmaster, since 1998. The two mothers (not their real names) have a four-year-old son and a 10-year-old daughter born to Kaisa via artificial insemination. In legal terms, they registered their civil union under French law in 2004. Claire also has joint custody, giving her the right, for example, to visit her children in hospital in the event of an accident.
That is where the family's rights end.
If Kaisa died suddenly, the French state would take away Claire's children. If Kaisa left Claire, the French woman would have no right to ever see them again. On the other side of the relationship, if Claire died, her children would have to pay a whopping 60 percent inheritance tax because in legal terms, they are strangers. If Claire left Kaisa, she would have no obligation to pay alimony.
"For our children, our family exists independent of what the law says. For them what matters is that they have two parents, two mums. They have been born into this. It's simple. It's obvious. They don't care about recognition in law. That may come later on," Kaisa told this website. "For us, as long as we don't have any problems, things can move along smoothly. But if there was conflict, tension, between us - these issues would be brought in very quickly."
The immediate problem for Claire and Kaisa is not one of anti-gay prejudice but one of legal confusion.
In order to win normal rights, Claire must adopt the children. As her son and daughter are Finnish citizens, this is possible only through second-parent adoption in Finland. But Finnish authorities do not recognise French same-sex unions and refuse to grant second-parent adoption to French-registered same-sex parents. If Claire and Kaisa had lodged their union in Belgium, the Netherlands or Spain, the Finnish courts could rubber-stamp the adoption because Finland does recognise same-sex unions from a handful of other EU states.
"From Finland there is no prejudice as such. They just don't know what to do - they are sticking to some kind of abstract guidelines. It's crazy there are so many different versions of national legislation and no mutual recognition everywhere in the European Union," Kaisa said.
In order for Claire to adopt, the family would have to negotiate a legal maze: Kaisa would have to dissolve her French union; move to Finland for at least six months; register there for tax purposes; register a new civil union under Finnish law; register the adoption; move back to France and obtain French recognition of the Finnish union and adoption package.
If the family moved to another EU country, the whole set-up could unravel. In terms of anti-gay prejudice, their rights would never be recognised in conservative countries such as Italy or Poland. If they were on holiday in a country such as Malta and one family member suffered an accident, there is no certainty that the others would have any hospital visiting rights at all.
Meanwhile, heterosexual families take all rights for granted from the day of their marriage from Dublin to Nicosia.
Asked by EUobserver if the status quo violates Kaisa's rights under the EU Treaty clause of freedom of movement and the Charter of Fundamental Rights on non-discrimination, the commission gave a boilerplate answer.
Citing a 2004 directive on freedom of movement, it said in a statement that: "The directive provides for the right of entry and residence for EU citizens and their family members regardless of the issue of recognition of marriages or partnerships. It is for member states to decide whether they provide in their internal legal order for same-sex unions."
It added that: "It is clear that union citizens, who live in a legally recognised marriage or registered partnership, should be able to maintain their status and their rights under union law when they move from one member state to another." It also noted that a new Action Plan in 2013 will look to: "facilitating free movement of documents and recognition of the effects of certain civil status documents (e.g. relating to birth, affiliation, adoption or name)."
The Brussels-based gay-rights group, ILGA-Europe, does not accept the argument.
"We cannot agree with the commission that the Freedom of Movement Directive is already tackling the gaps. Many same-sex partners are in fact opting not to travel and reside in a number of EU countries due to the implications that non-recognition of their marriages or registered partnerships has on their lives," it said in a statement in September.
What ILGA-Europe and Kaisa see behind the commission's stance is an unwillingness to tackle the politically explosive issue of enforcing liberal same-sex norms in conservative eastern or southern EU states.
As a journalist herself, Kaisa can imagine the headlines: 'EU imposes gay adoption on Poland.'
"It is a controversial subject, which forces people to say whether they are for or against same-sex unions. But in a way it's not about these theoretical discussions at all. These families already exist in Europe - if they are recognised by one country, they should be recognised by another, because non-recognition has very concrete consequences for people's lives," she said.
"It's about freedom of movement, about a founding principle of the EU. So what's more important for the commission - protecting its principles or making sure it doesn't make certain member states angry?"