The extension of the possibility of entering into marriage also to persons of the same sex, implements the constitutional principle of freedom and the constitutional principle of equality, states the Scientific Service of the Parliament in its report on the bill “Equality in civil marriage, amendment of the Civil Code and other provisions”. The bill will be introduced to the Plenary on Wednesday and the Conference of Speakers of the House has decided to set aside up to two days for its debate and vote. In the previous days, during the elaboration of the draft law in the committees of the Parliament, the rapporteurs of New Democracy, SYRIZA, PASOK, New Left and Plefsis Eleftherias declared “yes” in principle. The KKE, Hellenic Solution, Niki and the Spartans declared against the bill, with a different perspective and argument.

The Scientific Service, in its report posted a while ago on the website of the Parliament, states, among other things, that:

– “With article 3 of the bill (Conclusion of marriage by persons of the same sex – Amendment of par. 1 of article 1350 of the Civil Code) article 1350 par. 1 of the Civil Code is amended, and stipulates that the marriage is concluded between two persons of different or same sex. By extending the possibility of entering into marriage also to persons of the same sex, the bill implements the constitutional principle of freedom (Article 5 par. 1 Comp.) and the constitutional principle of equality (Article 4 Comp.), according to which , from a constitutional point of view, this legislative framework (of gender difference as an element for the subject of marriage) is not outside the limits of articles 4 par. 1, on the principle of equality, and 5 par. 1, on the free development of personality. Pursuant to article 21 par. 1 of the Constitution, the new regulations organize forms of legal recognition and protection in other cases of relationships that fall under the concept of family, in accordance with the jurisprudence of the ECtHR. It should be noted that the Council of State, confirming the compatibility of the establishment of the cohabitation agreement regardless of the gender of the parties with Article 21 of the Constitution, accepts that the aforementioned constitutional provision has a preliminary guiding nature and is interpreted in conjunction with the constitutional principles of the free development of the personality , of equality and the protection of private life”.

– Regarding the law of the European Union, it is pointed out that the issues of personal status, to which the rules related to marriage fall, is an area that falls under the competence of the member states. In this sense, European law does not mandate, but allows, the establishment by member states of regulations on marriage between persons of the same sex.

-In a series of decisions of the Court of Justice of the European Union (CJEU), it is defined that the member states are obliged to recognize the marriage between persons of the same sex that has been concluded in another member state, for the purpose of exercising the rights they derive from the law of the European Union .

-Accordingly, it has been accepted that if a child’s birth certificate mentions two parents of the same sex (with one of the two being a European citizen), “all the member states” must recognize the child’s parent relationship, i.e. recognize both of the mentioned as parents, for the exercise of the freedoms of Union law.

-Regarding the European Convention on Human Rights, the European Court has accepted that the contracting states have the obligation to recognize and protect with legal status the family relationships of same-sex couples, however, the choice as appropriate recognition, between marriage and, according to minimum, of a civil association, is a matter of national law.

Regarding adoption, the Scientific Service points out that the current legislation (both the AK and Law 4356/2015) does not regulate the possibility of adoption by a same-sex couple. From the silence of the legislator, who, although he was aware of the issue, did not regulate it, it can be concluded that there is no corresponding application of the relevant provisions in the cohabitation agreement regarding the joint adoption of a minor child.

– With regard to medically assisted reproduction, the report points out that there may be an issue of unequal treatment of same-sex married persons, depending on whether it is a couple of women or men, in violation of article 4 par. 2 Comp.

-Article 11 of the Bill (Parental relationship created abroad) covers not only parental relationships that have been registered in public documents or a court decision of a third country until the entry into force of this, but also parental relationships that will be created and registered, according the above, in the future. In this sense, and regardless of the legal obligation to recognize them, under the ECHR and the jurisprudence of the ECtHR, a question arises as to whether, with the proposed regulation, Greek citizens in the country, the establishment of parental relationships of which are not recognized, receive, as a result, less favorable treatment by Greek law or has been declared invalid, because it takes place in a way that is not regulated or not allowed by national law, although they take place under otherwise similar conditions.

K.B.