Dr. Sylvia de Mars, Lecturer in Law at Newcastle Law School, Newcastle University
As of midnight on the 14th of March 2014, same-sex couples living in the United Kingdom who were married in a foreign jurisdiction where said marriage was recognized are now also recognized as married in the United Kingdom. This marks a general trend in Western Europe of the increasingly recognised right for same-sex couples to form legal relationships; but, unfortunately, embracing gay marriage is only a starting point for establishing full legal equality for same-sex couples. Other, related rights frequently lag behind. What lingers is institutionalised discrimination on the basis of both gender and sexual orientation, largely because the government in question “forgot” to think beyond the first rights granted. The following contribution discusses a particular area of law where these problems remain in many countries, using the United Kingdom and the Netherlands as examples: namely, pervasively heteronormative and patrilineal structure of nationality laws.
The standard mechanism for the passing of nationality to a child in most countries is via the birth (or biological) mother: the child is born with the nationality of the mother. Beyond this, additional transmission mechanisms differ per jurisdiction; some countries (such as the United States, and until recently, the Ireland and Belgium) grant nationality to all children born on national soil (as per jus soli), and others (such as the United Kingdom) grant nationality to children because their parents have lived in a given jurisdiction for a significant period of time and are thus ‘settled’ there.
Where both parents are nationals of the country they live in, the nationality of their children is straight-forward. This will be the situation that an overwhelming majority of childbirths worldwide take place in; however, determination of nationality has always been more complicated, even for heterosexual couples, when the birth mother is not a national of the country that the baby is born in. In the United Kingdom, for instance, if the (foreign) birth mother and the (British) father are not married, their child does not automatically have British nationality; the father’s paternity needs to be proven (by registering the father on the birth certificate, which the birth mother must agree to do) before nationality can be passed on. The Netherlands’ current nationality law reflects a similar principle; however, prior to 1985, Dutch nationality was only passed through patrilineal descent—consequently a Dutch mother and a foreign father could not give birth to a Dutch child, even if married before the law. Nationality law that involves binational couples has thus historically been complicated. However, the concept of what a “couple” was for the purposes of these laws was a straight-forward issue—mothers and fathers were either married or not—until the legal recognition of gay partnerships became a reality in both the Netherlands and the United Kingdom.
The Netherlands was a pioneer in this field, legalising registered partnerships in 1998 and gay marriage in 2001. However, the Dutch legislators appeared oblivious to the idea that sometimes, lesbian couples have children together – and some of these couples will be binational, with the birth mother not having Dutch nationality. The 1984 version of the Dutch nationality law even as recently as early 2013 only dealt with two scenarios: One where the birth mother is Dutch and one where the birth mother is not Dutch but the birth father is and recognizes the child, thus passing on nationality. The idea of a second mother was fully absent from the law; in fact, unlike in the United Kingdom, even when married, the second mother did not have automatic parental rights over the child, and could only gain those by adoption. For more than a decade, this was not picked up as problematic by the Dutch legislator, and only in December 2013 has the Dutch parliament adopted laws that have introduced the legal parenting rights of non-birth mothers and changed Dutch nationality law accordingly. Now, Dutch (non-birth) mothers who are otherwise in identical positions to Dutch fathers can pass on Dutch nationality to their children; in fact, all relevant legislation has been rewritten to only refer to “parents”, rather than “fathers” or “mothers”. The fact that this has taken 12 years is disappointing, and at best, a possible reflection of the fact that particularly the patrilineal nature of the old nationality law will have affected few couples: only binational couples where the birth mother is not Dutch have ever faced this particular combination of problems, and there simply must not have been enough of them to force quicker parliamentary action on this front.
The interim period has been one of intolerable levels of discrimination; despite having had their relationship recognised as of 1998 or 2001, Dutch non-birth mothers needed to adopt the children that stemmed from that relationship in order to give them Dutch nationality and have legally recognised rights over them, whereas heterosexual men in an identical position simply had to acknowledge that the child was theirs. Adoption is both costly and time-consuming; acknowledgment is a single form that enables the father to be registered on the birth certificate as the baby is born.
In many ways, the UK has done a better job of adjusting other UK law to the existence of civil partnerships than the Netherlands did. The Human Fertilisation and Embryology Act 2008 has made it so that lesbian parents in a civil partnership can both be on the birth certificate of any child that either one of them gives birth to; the second mother is on the birth certificate as a ‘parent’, as per sections 42-45 of the Act. While not an immediate adjustment to relevant legislation following the 2004 legalisation of civil partnerships, this was a far quicker adjustment than the one made in the Netherlands, and can for that reason be applauded. However, that applause must wane when examining what has happened to the UK law on the passing of nationality, which has also responded to the existence of legal same-sex relationships, but not in a way that warrants cheering.
The British Nationality Act 1981, rather than make it clear that a second mother can also give British nationality to a child born within a civil partnership—as a father would be able to, if married to a mother—instead has been amended by the HFEA 2008 to define the term “father” as meaning also persons covered by sections 42 and 43 of the Human Fertilisation and Embryology Act 2008. In other words, rather than recognising that non-birth mothers have rights by giving them a specific legal status, or—as the Dutch legislation of 2013 has done—removing all references to “fathers” and “fatherhood” and simply rewriting nationality law to refer to “parents” and “parenthood”, the British Nationality Act 1981 has declared non-birth mothers to be “fathers” for the purposes of the law.
A complaint about this is likely to fall on deaf ears; after all, the UK government has guaranteed equality before the law! Who cares if second mothers are now legally recognised as fathers? A very similar reaction was seen for years when discussions about gay marriage arose; surely civil partnerships gave (largely) equivalent rights, so what did it matter that they were called something else? It has taken a number of years, but the UK government, at least, at long last has been convinced that separate is not equal and that anything short of granting marriage rights to same-sex couples would still be discriminatory. However, this situation is not analogous to that of gay marriage, in that it is doubtful that any woman would want to be recognized as the “father” of her child by the law—and so we witness that even in progressive countries, who appear to be making a genuine effort to eradicate both gender and sexuality discrimination, the learning curve remains steep. Current UK legislation guarantees the legal rights that lesbian parents would want to protect, but it ignores that they are not actually identical to heterosexual parents, and consequently does not grant them the equal recognition that they ideally would benefit from.