The best interests of the child in same-sex couples’ procedures for obtaining children

pdf (ελληνικά)
Published: Mar 26, 2025
DOI: https://doi.org/10.12681/bioeth.40928
Keywords:
best interests of the child family equality legal protection
Karina Lyakh
Law School, Aristotle University of Thessaloniki, Greece; Intern, National Commission for Bioethics & Technoethics, Greece.
https://orcid.org/0009-0005-8706-6399
Abstract

The International Convention on the Rights of the Child mandates that the best interests of the child should be the primary consideration in all decisions affecting them. A key principle of the Convention is non-discrimination, ensuring that children are not discriminated against based on their parents' sexual orientation. States must ensure that children of same-sex families receive equal treatment to those of heterosexual families by enacting legislation that protects their rights. Recognizing and safeguarding the rights of these children contributes to creating a society free from discrimination and prejudice. Regarding the rights of embryos, laws vary by country concerning the recognition of their personhood. Embryo protection should not override women's rights. The embryo is indirectly protected through the mother and is not considered a full person. The viability criterion is significant as it determines the embryo's ability to live independently without granting it full legal protection as a person.

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References
General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1).
The United Nations Convention on the Rights of the Child, 1990.
UNICEF, Handbook: Geneva, Implementa-tion Handbook for the Convention on the Rights of the Child, third edition.
The Declaration of the Rights of the Child, 1959.
Archard, David William. Children, Family and the State. Routledge, 2003.
Gerber, P. The Best Interests of Children in Same-sex Families. Law in Context 2010, 28(1), 28–42.
Marriage Equality Around the World. https://www.hrc.org/resources/marriage-equality-around-the-world
Pawelski JG, Perrin EC, Foy JM, Allen CE, Crawford JE, Del Monte M, Kaufman M, Klein JD, Smith K, Springer S, Tanner JL, Vickers DL. The effects of marriage, civil union, and domestic partnership laws on the health and well-being of children. Pediatrics. 2006 Jul;118(1):349-64.
Conceiving the Family: Lesbian Mothers’ Decisions, Experiences and Well-being, and the Current Legal, Public Policy and Discur-sive Context project.
Short, L. It Makes the World of Difference: Benefits for Children of Lesbian Parents of Having their Parents Legally Recognised as their Parents’. 3(1) Gay and Lesbian Issues and Psychology Review 5, 2007.
Mazrekaj, D., Jin, Y. Mental health of chil-dren with gender and sexual minority par-ents: a review and future directions. Human-it Soc Sci Commun 2023, 10: 509.
Alday-Mondaca C, Lay-Lisboa S. The Im-pact of Internalized Stigma on LGBT Par-enting and the Importance of Health Care Structures: A Qualitative Study. Int J Envi-ron Res Public Health. 2021 May 18;18(10):5373.
Goldberg AE, Garcia R. Community Char-acteristics, Victimization, and Psychological Adjustment Among School-Aged Adopted Children With Lesbian, Gay, and Hetero-sexual Parents. Front Psychol. 2020 Mar 10;11:372.
Allan, Sonia, Recognition of Same-Sex Par-enting in Australia: South Australia, the Fi-nal Frontier? Alternative Law Journal 2010, Vol. 35. No. 4.
Status of Children Act 1974 (Vic). https://www.legislation.vic.gov.au/in-force/acts/status-children-act-1974/044
Births, Deaths and Marriages Registration Act 1996 (Vic). https://www.legislation.vic.gov.au/in-force/acts/births-deaths-and-marriages-registration-act-1996/039
Status of Children Act 1978 (NT.). https://legislation.nt.gov.au/en/Legislation/STATUS-OF-CHILDREN-ACT-1978
UNICEF Position Paper: Eliminating Dis-crimination Against Children and Parents Based on Sexual Orientation and/or Gender Identity.
General comment No. 20: Non-discrimination in economic, social and cul-tural rights (art. 2, para. 2, of the Interna-tional Covenant on Economic, Social and Cultural Rights).
Case of Atala Riffo and Daughters v. Chile. https://www.corteidh.or.cr/docs/casos/articulos/seriec_239_ing.pdf
Parliamentary Assembly. Report | Doc. 14620 | 21 September 2018. Private and family life: achieving equality regardless of sexual orientation.
EGE Opinion n°12 - Ethical aspects of re-search involving the use of human embryo in the context of the 5th framework pro-gramme.
The Protection of The Human Embryo in Vitro. Report by the Working Party on the Protection of the Human Embryo and Fetus (CDBI-CO-GT3).
Summary Newsletter of the Judgments is-sued by the Inter American Court1 during its 97th Regular Period of Sessions.
Vo v. France.
Evans v. the United Kingdom.
EComHR, Bruggemann and Scheuten v. Federal Republic of Germany, app. no. No. 6959/75 (1981) 3 EHRR 244.
Barry L. R. Medical Ethics: essays on abor-tion and euthanasia, American University Studies. 1989.
P. Lefèvre, F. Beauthier, J.-P. Beauthier, An-thropology: Forensic Anthropology and Childhood, Editor(s): Jason Payne-James, Roger W. Byard, Encyclopedia of Forensic and Legal Medicine (Second Edition), Else-vier, 2016: 183-188.