Long way to go for gay rights in Europe

    Sunday, 21 June 2020
    This is an opinion article by an external contributor. The views belong to the writer.
    Dan Sobovitz and his husband, who were previously employed at EU institutions in Brussels, faced discrimination and a lengthy legal battle to claim their parental rights after their twins were born. Credit: Dan Sobovitz

    Father’s Day morning 2019, a five million strong community were celebrating WorldPride on the streets of New York and the jubilee of the Stonewall Riots. Instead of being among the festivities, my husband and I were behind closed doors, doing something the LBTGQ rights movement could not even dream of until recently, we became fathers.

    We saw the birth of beautiful, healthy, twin boys in a hospital some 1,300 km away in a suburb of Atlanta. Twelve months have passed since that unforgettable day.

    Like all new parents we discovered a whole spectrum of new emotions; anxiety, pride, and infinite love for those precious vulnerable creatures. Like many other parents, we were pondering the kind of world we were bringing them into; especially in terms of gay rights – or in their case their own family’s rights.

    It is astonishing to realise the difference between us and the previous generation of gay men; they who suffered stigma, marginalisation, discrimination, and an horrendous HIV/AIDS epidemic versus us who enjoy relative protection and growing legitimacy in most western societies. Of course, we would not be where we are if it weren’t for their heroic struggle. But are we really protected today? Is the struggle over?

    As Europeans, active in the EU bubble, we tended to believe that in the 21st century, we were living on the most progressive continent; one that cherishes and promotes human rights around the world. It was especially easy to look down on the situation across the Atlantic, where the President is a proud misogynist and the Vice President calls for conversion treatment for gay men. And yet, our journey towards same-sex parenthood, forced us to recognise that Europe is not (yet) the beacon of light we so wished to believe it was. Ironically, if it weren’t for that same United States of Trump and Pence, we would not be parents today.

    Under the pretext of protecting women, most (male-dominant) national European legislators forbid women from deciding freely over their body whether they wish to carry  an embryo for another family, which is infertile or unable to. It is crucial to point out surrogates do not carry their own biological children but rather an embryo who was fertilised with another woman’s egg.

    When the intended parents are gay men, donor eggs are typically fertilised by their sperm with eggs donated by another woman and then implanted in the womb of a surrogate woman who has neither biological link nor the intention to ever become the mother. And yet, the few European countries which do not forbid surrogacy altogether still refuse to recognise the fathers as the sole parents of the children.

    Like most other gay men who wish to become parents, we had no choice but to turn to the American system where a judge can declare the intended parents as the only legal parents (even before birth). This solution is far from perfect. It’s difficult to convey the emotional and financial strains of following your own childrens’ fetal development from the other side of the world.

    We were not physically present for most of the medical examinations; we were not able to put a hand on the shoulder of our incredible surrogate in sympathy, support and infinite gratitude; we were indebted to the astronomical costs of the American health system — exposing ourselves to even greater costs should anything go wrong. As staff of EU institutions, we depend on the institutions’ health insurance (known as the Joint Sickness Insurance Scheme or JSIS) which covers us and our children around the world, with the sole exception of the US due to its very high costs.

    Legal battle in Europe

    As white middle class men, we recognise the privilege we have. We were able to travel, to find a surrogate and to now be fathers. But this does not mean that our rights are on par with our heterosexual counterparts. Our children have still not been granted any of our European citizenships; we are even struggling to get them a visa (as they entered Europe as US citizen tourists).

    My husband is French, and France has been repeatedly condemned by the European Court of Human Rights for contempt of the court, ignoring the rulings that babies of French fathers must be recognised as French citizens. Under Macron the situation has improved but the Republic still refuses to fully recognise an American birth certificate with two fathers, putting the non-bioligical father at constant risk of losing his parental rights.

    We will therefore have to go through an (expensive) court procedure which would hopefully recognise the court order we received in the US. This means that until we resolve this issue, our parental status remains ambiguous on European soil, a matter for complex debate of international law.

    I’m a citizen of Hungary, Switzerland, and Israel and we were residents of Belgium at the time of the birth. Hungary will only recognise my biological child and not my non-biological one; only if I do a DNA test, and will automatically consider the surrogate as their mother. Under no circumstances will Hungary recognise that one child has two fathers.

    Switzerland and Belgium will only recognise us both as parents if we go through adoption, a lengthy and expensive process and frankly, a humiliating one – having to prove to a social worker that we are good enough for taking care of our own children; ones who have kept us busy for the past year. We changed every diaper. We gave every bottle. We endured all those sleepless nights.

    Other European countries have varying policies on the matter. In Italy, a birth certificate with two fathers is not even a valid document. Spain and Germany are among the very few to fully recognise the validity of a birth certificate with same sex parents. Yet, they will not not issue a birth certificate with same sex parents on their soil.

    Up until recently, it was ‘only’ my marital status that would disappear and reappear as I cross European borders, given that most EU countries do not recognise my same-sex marriage. Now, even my parental rights over my children are at risk if I go on holidays in the wrong jurisdiction. Meanwhile, we have moved to Germany where we have to fight with the national authorities to give our (US citizen) children a visa, as if they have anywhere else to go…

    Discriminatory policies in Brussels

    You would think that as opposed to some Member States, the EU institutions would be at the forefront of recognition of rainbow families; that the EU is perhaps even pulling the Member States forward. Think again. At the time we were married (in the US), prominent EU leaders were publicly arguing against the right of men to marry or raise children.

    As staffers of EU politicians, when we shared our news that we would soon become fathers, we discovered the institutions were also unready to grant us the time off to care for our babies, in the same way a heterosexual family would be entitled to parental leave. Only women who gave birth were entitled to take paid leave for five months after birth. Men were expected back to work on the eleventh working day after birth or they must take unpaid leave.

    This to us, is not (only) a discrimination against same-sex couples; it is a discrimination against men who want to share the burden and the joy of raising children. It is also a discrimination against women who wish to share the parenting with their spouses and return to work earlier. How can we continue criticising the gender pay gap when we still expect women to stay at home with their children and let men advance their careers?

    I was stubborn and eager enough to spend enough time bonding with my sons that I insisted until the European Commission granted me, ad hoc, the same rights as a heterosexual family. I was strong enough to come out to my boss, share my family plans, and receive his personal approval (as my HR required his approval as a precondition). Fortunately, my boss agreed.

    Unfortunately, this is not the case for everyone. Not every man is comfortable sharing his personal lifestyle or family planning with his boss. Not every boss would approve of this lifestyle. And why should anyone be in a position to beg his boss to get a right which is granted in the case of opposite-sex couples? Why should such rights be even decided per case and not granted equally?

    The European Parliament, where my husband worked at the time, wouldn’t even do that. It categorically refused to give him anything beyond the 10 days which men receive or to let us share the paid leave I received from the European Commission. It even refuses to recognise him as the father of his non-biological child, even if a US court has declared both of us as legal parents.

    That is why we sought the help of the European Ombudswoman who accepted to inquire the institutions about their policies with regards to LGBTQ parents. The three institutions have answered her very differently; from a commitment to grant same parental leave rights to all future same-sex couples (the European Council) to full rejection (the European Parliament) with some still in the process (the European Commission answered it was working on changing the rules and indeed changed the rules about six months later).

    The EU Ombudswoman justified our battle and helped us put this issue on the agenda. For this we are forever grateful. Unfortunately, she has no legal power to change the institutions’ decisions. That is why we also pressed charges against the European Parliament at the EU Court in Luxembourg for discrimination. We knew it would be too late for us but we hoped our case would at least pave the way for future same-sex families.

    Unfortunately, the Court rejected our lawsuit on procedural grounds, without even looking at the substance. It accepted the EU Parliament’s position that although the Parliament gave us a formal rejection of our request for parental leave before the babies were born, we should have waited until they were born, made the request then, have it rejected, appeal the decision internally, and only then would the court be allowed to intervene.

    By that point my husband was no longer working for the Parliament so this procedure wouldn’t have been possible. And even if he had, following this lengthy, complicated, and awkward process would have at best allowed us to have our post-birth leave retroactively recognised by time the kids were getting married…

    I really wonder how the people who articulated this position sleep at night. I wonder if they tuck their own kids into bed, while finding legal acrobatics on why I shouldn’t be allowed to do the same.

    Long way to go

    Back to the other side of the pond, we happened to have been matched with a surrogate mother from the rural part of the state of Georgia. This is one of the regions known by many Europeans  (like ourselves) as the Trump base, Bible Belt, neo-conservative stronghold, etc. We fell in love with Kristina immediately, with her charm, wit, intellect, curiosity, and most importantly, infinite altruism.

    Kristina has three charming children of her own and runs a daycare. She couldn’t stand the idea that some people want to have children and can’t. She decided she had to do something about it; it was her mission to carry a baby for a couple who couldn’t do it on their own, straight or gay. The money was not even a motivating factor (and in any case under US regulation all surrogates are checked for psychological fitness and financial stability prior to being granted surrogate status so they cannot be desperate for money).

    Over the months of knowing her as the surrogate of our sons, we grew to admire her personality so much so that we humbly asked her if she would be a godmother to our sons. We couldn’t think of a better female role model for them. She said yes.

    Kristina is unique, no doubt. But through her we got to know her environment, her family, her friends, the staff at the hospital where she gave birth, and even the journalists at a local Georgia newspaper who covered our extraordinary story.

    How were the other reactions? You can ask the delivery doctor who invited us to stay in his house until the babies were released from the hospital, or the hospital nurse who repeatedly travelled back and forth two hours to visit our boys after discharge and spoil them with gifts, or the hundreds of people who reacted on the local journalist’s article on social media, stating how proud they were that this could happen in their town.

    Granted, there were also several negative comments, but for each bad one there were dozens filled with love and empathy, coming from the same Bible Belt we thought might be homophobic. And once again, it was this same rural southern US state that married us, recognised us as parents, and even changed our children’s birth certificate from ‘mother’ and ‘father’ to ‘Parent 1’ and ‘Parent 2’ to make it more inclusive.

    Where do we go from here? Are we planning to now migrate to America? No. Although the USA was our own private Land of Opportunities where we could fulfil our dream to become parents; although over there no authority can question our marriage nor legal parenthood, we know where we feel home and we are still planning to raise our boys as Europeans. But, this experience has taught us to see beyond the black and white definitions of American conservatism as they appear from Europe; as well as beyond the colourful rainbow flags which are proudly woven over public authorities across Europe. (These are often the same institutions which refuse to allow us to have our family recognised, or to give us the rights to care for our children like other parents).

    We discovered an entire range of grayscale when it comes to gay-friendliness. This magical journey has awoken us from our illusion that Europe was a gay-rights paradise to the unpleasant realisation that our rights are far from being delivered to us on a silver platter. That is why continue appealing, petitioning, and publishing articles such as this. Fifty years after Stonewall, it is still up to us to fight for a better Europe for our boys, whether straight or gay, to grow up in.

    *If you are a same-sex couple, fighting against institutional discrimination and seek help, drop me a line on social media as our lawyers are happy to pick up the legal fight where we stopped – pro bono.