Tuesday, 24 December 2013

Times: Same civil entitlements

Wednesday, November 20, 2013, 00:01 by Martin Scicluna

The Government is to be commended on bringing forward the Civil Unions Bill so early in the Parliament, thus ending another glaring social injustice in Maltese society. In an astute political move, it has drafted legislation, drawing on the Danish experience, which has finessed the concerns of both the lesbian, gay and bisexual community, who wanted same-sex marriage, and those – the majority, I suspect – who did not want its introduction. The LGBT community have got a civil union scheme which, though not ‘marriage’ per se, will have as near as dammit the same “corresponding (legal) effects and consequences” under the law as marriage.

I remain personally convinced that in due course, once the benefits of civil unions have demonstrably been seen as not threatening to the fabric of Maltese society as some religious bigots might argue, marriage equality for homosexuals and heterosexuals will come about. This has been the story in the United States and elsewhere in Europe, where in the last few years many states have introduced same-sex marriage laws, mostly following a period when civil unions were the only option.

The overriding practical consideration of the proposed Civil Union Act is that civil partnerships will deliver the significant majority of the rights and obligations that marriage confers.

It will make a major difference to the currently vulnerable legal position of same-sex partners by giving them the opportunity to gain legal recognition for their relationship and by achieving concomitant rights and responsibilities. The legal limbo into which they have been thrust will be removed.

It is envisaged that the rights, duties and remedies that would arise as a result of civil unions will be extensive. It is inevitable that in enacting legislation our law-makers will have to take into account some very difficult issues.

They will have to weigh up the practical consequences – including any unintended consequences – in such key areas as succession arrangements, pensions, tax arrangements and others. But perhaps the most difficult test of legislators’ judgement and compassion will concern civil union arrangements for children, including rules on their adoption.

How should children of civil partners be treated? Apart from the possibility of adoption, some same-sex partners may come with children from a previous, heterosexual marriage. Single mothers or single fathers may subsequently enter into a same-sex relationship. Lesbians may conceive a child with a man, then become same-sex partners in a civil union. The likelihood of same-sex partners having children as part of the new, same-sex family unit cannot be ignored by legislators and they must aim to frame the legislation accordingly.

The science about the best parenting structure for a child’s upbringing is still in its infancy. Some studies argue that there is no scientific evidence to show that the effectiveness of good parenting is directly related to the parents’ sexual orientation, whether homosexual, heterosexual or bisexual. Others argue that the ideal environment for raising children is with a stable biological mother and father. No other parenting arrangement, it is contended, affords as many emotional advantages as being raised by biological parents joined in a life-time commitment.

What is abundantly clear is that the existing scientific research does not provide definite answers or solid empirical evidence for or against same-sex parenting.

In such a sensitive area, it would seem sensible that further evidence should be established before irrevocable long-term decisions under a law are taken. All other factors being equal, however, the legislation should seek to cater for same-sex couples with children and it should therefore give due regard to any children who may reside with same-sex civil union partners.

As to the vexed issue of adoption, the Convention on the Rights of the Child states: “In all actions concerning children, ….the best interests of the child shall be a primary consideration.” This should be the overriding criterion guiding Malta’s own civil union legislation. Sexual orientation should not influence whether a person is allowed to adopt a child or not. His or her suitability cannot be determined by sexual orientation or marital status.

Maltese law allows single people to adopt. The gold standard for deciding adoption should be the best interests of the child regardless of whether the person doing the adopting is homosexual or heterosexual. All prospective adoptive parents, whether a couple or single, gay, bisexual or heterosexual, should undergo the same process and be allowed to adopt if they show themselves to be suitable parents.

In Malta, Appoġġ lays down that all adoption applications are treated equally “ensuring that the applicant(s) can provide an environment that ensures the physical, emotional and psychological well-being of the minor to be adopted”.

The civil union scheme should in principle reflect the same approach and specific conditions.

Homosexuality is not a threatening social reality, but one to be accepted and accommodated.

Gay couples have the same need and capacity for love, partnership and companionship as heterosexual couples. It cannot be coincidental that so long as society chooses to treat homosexual couples as second-class relationships, lesbian, gay and bisexual people are the victims of homophobic incidents.

The creation of a new legal relationship for same-sex couples will play an important role in increasing the social acceptance in our society of gay men, lesbians and bisexuals, removing discrimination and thus building a safer, more inclusive and fairer society.

Civil unions will also provide a framework for same-sex couples to acknowledge their responsibilities, including as parents, manage their financial affairs together and achieve legal recognition.

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