Vijftien jaar openstelling huwelijk - Naar een huwelijksrecht ongeacht gerichtheid en geslacht

摘要

On the occasion of the 15th anniversary of the first legislation in the world that opened up marriage to same-sex couples (in the Netherlands, 1 April 2001) the author investigates if it would be possible to make marriage law, and in particular filiation law, completely orientation-neutral. He bases his analysis in the travaux préparatoires of the wording of the right to marry in the Universal Declaration of Human Rights and in other human rights documents. The demonstrates that the words “men and women” in the Universal Declaration have never been intended to exclude same-sex couples from marriage. On the contrary, those words were used to emphasize the gender-neutral character of the right to marry. Nevertheless, as regards parenting even Dutch law still makes a distinction between women and men – and thereby between heterosexual and lesbian marriages (especially when the child is conceived with semen from a known donor). The author analyses how these last distinctions can be eliminated (also with respect to surnames, and also in the interest transgenders and intersex people). He concludes that this is possible by merging the Civil Code articles on legal motherhood and legal fatherhood. The new rule could simply start with “Parent is the person who…”. And among other things it could provide that “parent” is the person who at the time of birth of a child is the married or registered partner of the person who gives birth, unless another person, with the consent of both partners, has acknowledged the child before it is born. Thereby the law would no longer distinguish between children conceived with or without a sperm donor, between children conceived with a known or unknown donor, or between children born to a lesbian or heterosexual couple. And so (Dutch) marriage law would become completely gender-neutral and orientation-neutral.