The reason for our statement is the bill concerning equality in civil marriage, which is currently being voted on, and the extreme homophobic and transphobic discourse expressed in the public sphere, often by institutional actors and far-right circles. This discourse targets and stigmatises citizens and individuals who do not conform to the dominant patriarchal, heteronormative norms, as well as children of alternative family forms.
We aim to contribute to the public debate on the importance of recognising the rights of all, promoting equality and broadening institutional arrangements for gender equality and social justice. At the same time, we seek to raise critical questions and challenge how these rights are approached and legislated, especially since this legal framework will affect existing and future family relationships, relationships between partners and relationships between parents and children (biological and adoptive), aiming at marriage equality and the elimination of discrimination based on sexual orientation or gender identity.
The legal recognition of same-sex couples constitutes a major aspect of their private and family life, protected by Article 8 of the European Convention on Human Rights (ECHR) and is required by the principle of non-discrimination based on gender and sexual orientation (Article 4). The bill for the recognizing of same-sex marriage follows these above principles and addresses the urgent social reality in Greece and in Europe. It aligns with the constitutionally protected principles of equality before the law, equal rights and obligations of Greek men and women and the right to the free development of personality (Articles 4 and 5 of the Constitution).
The long-awaited marriage equality bill, though undoubtedly a positive and necessary step towards substantive equality, has significant gaps. As it has been noted by numerous organizations defending LGBTQ rights and alternative/queer families, as well as institutional actors such as the Ombudsman and the National Human Rights Commission, it does not enhance the visibility and inclusivity of all family forms and does not guarantee the next generation of rights related to marriage and same-sex/transgender parenthood.
For example, it is noteworthy that while in Article 1350 of the Civil Code the definition of marriage does not include gender difference as a condition for it to have (legal) status, [1] it was nevertheless adopted by the courts in case law. Thus, for many years they concluded that under the current national legal framework there is no possibility of same sex marriage. The legislator, overcoming this anachronistic approach, now explicitly adds to the law the possibility of civil marriage between same-sex people, giving them the possibility of adoption (Article 1545 CC). However, this is done by amending only Article 1350 CC on marriage and no other articles of Family Law, nor the law of Civil Partnership (Law 4356/2015).
The decision not to amend the law of Civil Partnership, for same-sex couples excludes the non-biological parent from any parental rights. [2] In addition, both heterosexual and same-sex couples in Civil Partnership are still excluded from adoption and limited to fostering, perpetuating discrimination against couples in Civil Partnerships compared to married couples, creating ‘two-tier’ couples in terms of parental rights.
It should be noted here that, as suggested by human rights institutions and Civil Society organisations, it is necessary to replace the term “yiothesia”, which is found in the Civil Code and national legislation, with the term “teknothesia”. In Greek “yiothesia” (adoption) contains the root “yios”, which means “boy child”, implying a gender bias. On the other hand, “teknothesia” (adoption) is a gender-neutral term that does not reference a specific sex of the child. This change would ensure that the language used in the law is inclusive and non-discriminatory, reflecting the evolving understanding of gender and family structures. In addition, the phrase “same or different sex” should be replaced throughout the relevant parts of the bill with the phrase “regardless of sex” in order for the new law to be inclusive of transgender, intersex and non-binary people. We believe that since language evolves and educates, the law should introduce non-discriminatory terms that do not reproduce linguistic sexism and gendered power relations.
Putting an extra obstacle to this progressive intervention, the legislator further limits the range of the new law by depriving male same-sex couples who enter into civil marriage of their self-evident right to medically assisted reproduction, [3] and surrogacy. [4] As clearly stated in the text of the Minister of State accompanying the Bill, the right to medically assisted reproduction, as well as the right to surrogacy, does not extend to male couples. And this, despite the fact that the National Strategy for LGBTQ+ Equality states that “in the context of an inclusive policy based on the principle of equality, the broad interpretation of the prerequisite of incapability of natural reproduction – a condition that underlies the general regulation of the issue – would also cover people in a same-sex relationship”. And despite the fact that the Bill “aims to ensure the principle of equality and strengthen protection against discrimination” (Article 1 Purpose).
On the other hand, we cannot fail to recognize the importance of legislating marriage equality, regardless of gender but this equality is incomplete and conditional to the extent that political and social issues remain open:
- The under restrictions formation and function of new family relationships and the consequent prohibition of childbearing by same-sex couples both formally and substantially ensures the continuation of the nuclear heteronormative family.
- It cannot be legally tolerable for the state to have a marriage with limited rights and leave the interpretation of law provisions to the possibility of multiple and contradictory court rulings.
- A mother who has a child by natural or medically assisted reproduction within her marriage to another woman continues to be deprived, she, her spouse and their child, of their self-evident right to the irrebuttable presumption of parentage by marriage.
In essence, the Bill validates existing established and legally supported parenthood based on gender discrimination.
When it comes to surrogacy, we oppose stigmatizing women who have experienced it and creating moral panic regarding the self-determination of women’s bodies. As for the legal framework for surrogacy, we believe that many issues remain unregulated, leading to legal uncertainty about the relation that arises under the law. The surrogacy procedure creates an exceptional kinship, since the relation is not legally established by birth, but by the wish to have a child, which is validated by a court authorisation. In short, according to the law, [5] the desired result is achieved through the (legal) connection of the child to the woman who wanted to become a mother and not to the surrogate, the gestational carrier who offered her body to help the first woman have a child, introducing the concept of “socio-emotional kinship” (Kounougeri-Manoledaki, 2018). For the above-mentioned presumption of maternity to function, it is necessary that the conditions set out in Article 1458 CC are met. [6] It must be emphasized that in the context of the law, the ova must be foreign to the gestational carrier, either from the “social/applicant” mother or from another third party.
According to this data, critical issues emerge. Whether the provisions can be said to apply proportionally to men, in the case of same-sex couples, on the basis that a negative answer would constitute discriminatory treatment. At least two court cases have recognized the right of a man alone to pursue surrogacy based on prohibited discrimination on the basis of sex. Both applications were granted at first instance. Since the right to marry for same-sex couples will now be recognized, the question becomes more complex as the issue of presumption of paternity is involved.
These gaps create legal uncertainty, which is neither doctrinally nor methodologically tolerated by our legal system, and we cannot fail to notice that the bill raises issues of discrimination on the basis of gender and/or sexual orientation. In any case, bioethical questions raised by such legislative proposals must be approached with empathy, seeking substantive equality in the context of reproductive justice (Rethymniotaki, 2023).
Furthermore, surrogacy though not regulated by the Bill, and in the case of same-sex male couples legally and/or culturally non comprehensible, it (again) disrupts the existing Family Law and traditional perception of motherhood (Tsoukala, 2013). The passing of the bill became the reason for a number of bioethical dilemmas to come to the front again, concerning the institutionalisation of the biotechnological method of surrogacy, the relationship with the surrogate/pregnant woman and the relationship with the applicant/social mother (Kotzambasi, 2021). It also makes visible (again) the way law and kinship intertwine in specific cultural contexts, with the aim, among others, of solving the problem of under-birth rates (Law 4958/2022 Article 1 Purpose).
At the same time, while more than 20 years have passed since the original law on medically assisted reproduction, [7] even today there seems to be a lack of substantial discussion and public debate on its legal, political, economic and ethical dimensions, the issues that arise about reproductive freedom and the right to self-determination of the body, the commercialisation of the reproductive process and its direct link to under-birth rates and the dominant heteropatriarchal and nationalist discourse on demography. And while the low birth rate in Greece and the cultural emphasis on becoming a parent, and especially a mother, have resulted in the widespread dissemination and adoption of available assisted reproductive techniques, the state’s due support and information to women (and couples) is lacking, who are often left alone to face silence, failure of the attempt, physical, psychological and financial costs (Kantsa, 2015).
The “demographic concern” about the national future in danger, however, works by establishing discourses of national heterosexual normativity at various levels of social life, such as the embodied self, kinship relations and national belonging (Athanasiou, 2013: 39). And that is why the law determines what is ‘normal’ and therefore what is permissible in the context of specific reproductive scenarios that (cannot) lead to new kinship relations, family and biological connections. That is, the law is enlisted to define the ways in which people are connected and related, what it is that makes a person relative.
What is interesting in the case of surrogacy is the fact that maternity is no longer established on the basis of giving birth (mater semper certa est), [8] but on the basis of judicial authorisation, since what the legislator favours is the desire to procreate, which has been a demand of feminist movements since the 1970s. Thus, the culturally taken-for-granted category of ‘mother’ is abolished, while motherhood as a natural, stable and unquestionable legal category collapses (Tsoukala, 2013:154-161). The desire to procreate as the basis for the legal and social constitution of parenthood, disconnected from biological capability, opens up the question of the recognition of this desire for other people such as (same-sex) men.
Feminist perspectives on reproduction, fertility and motherhood have been problematised since the late 1970s with the introduction of assisted reproduction biotechnologies. Early feminist approaches focused on the physical consequences of IVF, without challenging dominant concepts of the gendered dimension of parenthood and the division of care. Later feminist approaches focused on the social pressure on women who are often willing to put their (physical and mental) health at risk in order to have a child biologically, showing that motherhood constitutes a key component of normative feminine identity (Kanaveli, Kosifologou, 2023).
Medically assisted reproduction and, particularly, surrogacy are issues that have polarised views within the feminist movement and feminist (legal and sociological) theory at European and international level. Some argue that flexibilization of procreation requirements leads to the commercialization of the female body and human life while others believe that a complete ban (e.g. on surrogacy) would create parallel situations where this practice would occur de facto, outside the limits of the law and with serious risks for the individuals involved.
In the context of the feminist view that rejects surrogacy, its class and racist character is highlighted and the emergence of a new sexual division of labour in which the reproductive capacity is ‘assigned’ to poor women (Federici, 2023), native or foreign, as in the case of Greece, where it is found that 50% of surrogate mothers are foreign (Kotzampasi, 2021). In this regard, the increase in the age limit of surrogates to 54 years and flexibilization of the criterion of residence in the country (Law 4958/2022) has exacerbated and consolidated this reality. Therefore, we should not, at any level, miss the vulnerability of women experiencing social and economic exclusion and the need to protect them through the tightening of regulations and frameworks concerning IVF in general and especially in surrogacy.
In any case, for us, surrogacy can only be an altruistic and non-commercial process. It requires effective monitoring of what is laid down by law, but also the tightening of the requirements for a woman to become a surrogate, strict supervision by the state authorities on private clinics, the establishment of a state record of applicants and surrogates, psychosocial support and information services for all parties involved, etc.
An approach that puts cross-disparities (gender, race, class, etc.) and intersectionality at the heart of the issue, when considering the field of reproduction and the new biotechnological possibilities of establishing kinship, widens the bioethical and political questions. Οn this basis, the concept of reproductive justice emerges as the meeting point between reproductive rights and social justice. This concept explains how a woman/femininity’s ability/capacity to define her reproductive journey is directly linked to the conditions she experiences in her community and the group (racial, ethnic, linguistic, class, etc.) to which she belongs. Reproductive justice, in other words, looks at the social reality of inequality and, more specifically, the opportunities that certain groups of women have or do not have to control their reproductive “destiny”.
Reproductive justice combines the individual right to make personal decisions about reproductive issues with the obligation of the state and society to ensure that conditions are appropriate for the implementation of reproductive decisions, highlighting structural and systemic issues that cannot be overlooked by the legislator (Rethymniotaki, 2023).
The reproductive justice discourse is particularly critical when it comes to the social stratification of medically assisted reproduction – whether it concerns heterosexual or same-sex couples and individuals. Hence, the relevant approaches focus on analysing the exploitative relationships involved in the context of technology and biology, in the middle of structurally unequal relationships between ‘donors’ and ‘recipients’ or ‘clients’, many of whom are relatively affluent individuals (whether straight women and men, or gay women and men). It is therefore crucial to protect socially vulnerable women who may be victims of exploitation and trafficking. As well as women who may be driven to dispose of their bodies and their reproductive capacity because they have no other resources, and as a result their freedom of consent is de facto limited by a pressing economic need.
In conclusion, and in order to be useful in the dialogue that has opened up in the broad field of feminist critique and women’s demands, we would like to comment that the debate today seems to rest on the safety of the nuclear family as it has been established in Western societies, ignoring the multiple forms of families that exist and insist on not conforming to the nuclear family model, or that arise as a result of its non-functionality (single-parenthood from divorce, double family cohabitation, social co-existence/ cohabitation of biological and social siblings and/or parents/partners etc. ). Forms which, rather than recognising the importance of the choices they provide to the individuals involved, are treated as the “wrecks”, and the “failed” attempts of an otherwise “well-functioning” nuclear heteronormative family.
Often, alternative forms of family are delegitimized in the interest of the children and placed in the sphere of the inconceivable, from which undoubtedly emerges a normative judgment. The terms of the conceivable are extorted and constrained by debates around who and why is to be included in the norm. The need to politicize such reflective questioning and searching cannot be delimited, in the present circumstances, by ignoring sexuality as a field of politicization. What dominates the field of debate is the urgency to articulate today a political position that promotes perspectives which naturalize sexuality, reproductive process and parenthood itself.
We are against homophobic and transphobic voices in the public sphere that stir up fears that lie in the background of reproductive relations, natural or artificial, fears about technology, demography, the unity and perpetuation of the nation, fears that a part of feminism, by giving emphasis to love and child upbringing, has paved the way for kinship outside the family, between “strangers”.
We are sceptical as to whether a discussion centred on motherhood and the rights that flow from it can be conducted by folding back into entrenched essentialist identities that we have been fighting against for the last 50 years, already since Simone de Beauvoir and the Second Sex.
We remain committed to claiming rights for all. We remain assertive in defending the rights of all vulnerable and socially excluded women/femininities.
Bibliography
Athanasiou, Ath., (2013), Bloodlines: performing the body of “demos”, estimating the time of the “nation”. In Kantsa, V., (ed.) Motherhood in the foreground. Contemporary research in Greek ethnography. Athens: Alexandria Publications, pp. 37-64.
Kanaveli, E., Kosyfologou, A., (2023), Intangible motherhood. Modern aspects of motherhood in crisis conditions. Athens: Plithos Publications.
Kantsa, V., (ed.), 2015, Changing Relationships. Kinship and IVF (only in Greek). (In)FERCIT, Laboratory of Family and Kinship Studies, Department of Social Anthropology and History, University of the Aegean, Greece.
Kotzampasi, A., (2021), Surrogate gestation as an aid to reproduction: Bioethical dilemmas and interpretative issues, Elldni 4/2021 (62) (only in Greek).
Ε. Kounougeri-Manoledaki, E., (2018), Family Law, Volume 2, 7th edition. Athens: Sakkoulas Publications.
Rethymniotaki, El., (2023), Reproductive technology and the female body: the scope of legal modernization of the Law 4958/2022. BIO – NOMIKA, Vol. 5, Issue 1 (2023).
Tsoukala, Our. (2013), Anthropological approaches to kinship in legal beings: the case of surrogacy. In Kantsa, V., (ed.) Maternity in the foreground. Contemporary research in Greek ethnography. Athens: Alexandria Publications, pp. 147-168.
Federici, S., (2023), Beyond the boundaries of the body. Athens: Potlats.
[1] Article 1350 AK refers to “spouses to be married” and not to a man and a woman.
[2] According to Article 9 of Law 4356/2015, “A child born during the term of the Civil Partnership or within three hundred (300) days of the termination or annulment of the Civil Partnership shall be presumed to be fathered by the man with whom the mother entered into the Civil Partnership”.
[3] According to Article 1455 CC, medical assistance in human reproduction (IVF) is permitted only to address the incapability of having children naturally or to prevent the transmission of a serious disease to the child.
[4] The term “surrogate mother” is included in Article 3, par. 9 of L.3305/2005 (only in Greek), which defines the methods of medically assisted reproduction as established in modern medical and biological terminology and applied on international and national level. According to para. 9. “Surrogacy is the case in which a woman conceives and gives birth (carrier or gestational carrier), following in vitro fertilization and transfer of fertilized eggs, using an egg foreign to herself, on behalf of another woman who wishes to have a child but is unable to conceive for medical reasons.
[5] L.3305/2005
[6] Article 1458: The transfer of fertilized ova, foreign to her own, to the body of another woman and the carrying of a child by her, is permitted with a court permission granted prior to the transfer, provided that there is a written agreement, free of charge, between the individuals seeking to have a child and the woman who will carry the child and her husband, if she is married. Court permission shall be granted after request to the woman wishing to have a child, if it is proved that she is medically unable to conceive and that the woman offered to conceive is, in view of her state of health, eligible to conceive. It should be noted that if the conditions of this article do not apply, the presumption of maternity may, under certain conditions, be reversed with a corresponding retroactive recognition of the maternity of the woman who has given birth, and thus a corresponding retroactive reversal of the presumption of paternity, which is ancillary to the presumption of maternity.
[7] Since 2002, surrogacy has been regulated by a series of laws: Law 3089/2002 – Medical Assistance in Human Reproduction, which introduced changes and regulations on issues of definition of kinship and inheritance in order to keep up with new technologies, Law 3305/2005 – Implementation of Medically Assisted Reproduction, Law 3089/2002 – Medical Assistance in Human Reproduction, Law 3305/2005 – Implementation of Medically Assisted Reproduction, Law 3089/2002 – Medical Assistance in Human Reproduction. 4558/2018 and Law 4737/2020 on the rationalization of the market of assisted reproduction services and the reform of the Authority for Medical Assisted Reproduction, Law 4958/2022 – Reforms in medically assisted reproduction and other urgent regulations, which has a more practical dimension and concerns the requirements and control of the operation of assisted reproduction clinics. The laws combine to form, in comparison to other European countries, a permissive legal framework for the use of most of the possibilities offered by medically assisted reproduction techniques.
[8] The kinship of a person to their mother and relatives is inferred from birth – CC 1463.
