The Legal Position of Children of Same-Sex Parents in Poland and the Netherlands: A Discussion of Opposing Approaches

Abstract

This paper presents two different approaches to the regulation of legal parent–child relationships in the case of same-sex couples. The Polish legal framework can be qualified as traditional and grounded in hetero and cisnormativity. The Dutch family code is grounded in the same heteronormative approach but has evolved over the past decades into a more liberal and inclusive framework; however, its heteronormative foundation is still visible. Both case studies refl ect the unruly character of everyday life, in which the legal regulation of family relations is continuously put to the test, resulting in exclusions and in particular vulnerable positions for children born into other than opposite-sex relationships. In Poland such situations do not just occur when same-sex couples decide to raise a family despite the absence of a protective legal framework; transgender parents who change their legal gender marker and Polish immigrants with foreign documents also present complex questions issues to the authorities. In the Netherlands the heteronormative foundation of family law is reflected in, for example, the fact that if a child was conceived with the semen of a known donor, only male married or registered partners of the woman who gives birth will automatically become the child’s legal parent. The aim of this paper, which presents two case studies, is to provide an incentive for rethinking the current legal systems, so as to better protect all children, regardless of their parents’ sex or gender, and thus strengthen respect for and implementation of the rights of children born from same-sex relationships.