What happens when a family is legally recognized in one European country but not in another? Family law attorney Elias Yiannatsis explores the legal challenges facing same-sex parents across the European Union, from cross-border recognition of parenthood to adoption, surrogacy, and international family rights. Founder of Elias Yiannatsis & Associates, Elias specializes in international family law, handling complex cross-border disputes involving child relocation, international child abduction, adoption, and surrogacy. A member of the Athens Bar Association, legal advisor to Proud Parents, and volunteer with NELFA, he has been actively involved in advancing LGBTQ+ family rights in Greece and across Europe.
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Parenthood Of Same Sex Couples In The EU With Elias Yiannatsis
I am very excited to welcome everyone to our continuing video cast series, Thinking Boldly. We are very excited to have as our guest Elias Yiannatsis, who is an attorney who has handled a wide range of civil and criminal law cases. He is here with us from Athens. He is a member of the Athens Bar Association and a practicing lawyer in court in Greece.
He specializes in family disputes, including domestic violence cases, cross-border disputes, for example, including abduction between parents, child abduction, and cases of same-sex couples. Elias is a graduate of Athens National University and holds a master’s degree in private international law and international transactions law.
His thesis was on the regulation proposal for the recognition of parenthood between member states in light of the CJEU’s decision of 14 December 2021. The cross-border recognition of same-sex coupled families between the member states in the EU. We truly have an expert here with us. We are very honored to be able to bring Elias and his wisdom to our Consilium Institute audience, and thank you, Elias, so much for your time.
Thank you, it is my pleasure. As I have already said, it is very nice to meet you all.
We are absolutely delighted to have you. Just as a little bit of an intro for the Consilium Institute audience, we do bring wise advisors to you to learn more about things both nationally and internationally. Elias is our first and honored guest, being an international guest. I know that the wisdom he brings will inform all of us, without further ado.
Wisdom is a big word for me. I am still a bit young, I am trying to get wiser, and I am in the process. I hope you help me to be wiser. I am building up knowledge.
Part of our thinking is that the more we share, the wiser we all get. It is a growing opportunity for all of us. Certainly, you offer a window into a conversation that we do not often get to have. As Americans looking toward Europe, we see that there is a lot of variety, and I would think that that manifests in the laws as well as in the social context. I would love to hear some of your experience in terms of, particularly, I know recently you had an experience between I believe it was Germany and Greece on a case. If you could kick us off just by talking a bit about that, that would be wonderful.
Understanding Legal Complexities Of European Family Law
As already said in the introduction, as an attorney, I have practical experience in LGBT families of Greek people living abroad that were trying to be recognized in the Greek legal order, because maybe this is a concept that is a bit strange for practitioners from the United States to understand and be familiar with. To give you a bit of the context in order to understand the dispute, in Europe, family law is not harmonized because we have the European Union. There are some central regulations, for example, regulating things like jurisdiction on parenthood or on maintenance obligation, hereditary law, inheritance law, and also regulations regarding the applicable law.
Which law is applicable when, for example, a Greek person is dying in Italy, and he has his estate in Spain, let’s say, so we have these complexities. They cannot intervene in the core of how a country regulates its internal affairs. Maybe it is a bit similar to the United States concept of states. Still, it is more maybe the cultures are very different. This is what is changing, and in matters of the sovereignty of each state, that has to be respected. Family law is even more sensitive in this issue. Right now in Europe, it is like being two blocks or more away from Western-like states that are in favor of LGBT rights.
This is like really making a dichotomy, this is a Greek word, but I think it is also used in English like a dichotomy. More states like Hungary and Italy. That is very conservative. They are trying to minimize the rights of LGBT people, like cohabitation agreements and registered partnership agreements, but they do not want to give rights concerning children. Same-sex couples, for example, cannot have a legally recognized child, and they are recognized only as the biological parent. This was the condition.
Many Greeks living abroad were living in Germany, for example, or in France or in the UK, which is no longer in the European Union, but there were many cases there because there is a big Greek community in the UK that was forming their families either through medically assisted reproduction or through adoption. Greece was refusing the recognition of these familial ties. This means that they were refusing to recognize judicial decisions in most cases that were either giving consent, for example, to proceed with medical reproduction or maybe surrogacy in some cases, outside the European Union, because surrogacy with same-sex couples for gay men is not allowed in Europe.
Where in Europe? Elias, anywhere in Europe?
For gay men. I am completely positive that it is not allowed in Europe. Surrogacy is allowed only for women, for singular women, and in Greece, for example, and for straight couples, but not for gay men. Not for a couple of men because it is considered that the concept is that surrogacy and medically assisted reproduction are something to compensate for a medical default, something that is missing. This is like the principle. They are saying that for a couple of men, there is no way that they need a surrogate. You cannot use a surrogate because it is not something in biology to help or to compensate.
The Conflict Between Surrogacy And Traditional Concepts Of Maternity
You could not have a three-party agreement between the surrogate and two gay men.
No. There was an issue with whether single men in Greece are allowed to use a surrogate, since single women are when they have fertility problems. They are dealing with men. The physiology, the biology of men, is something different. It is based on an idea of maternity and that each woman needs to be a mother, and they cannot understand how a single father or a man would like to have a child or raise a child. There is a lot of homophobia, for me, behind that. In legal theory, we can find a lot of theories, a lot of arguments, but my sense as a person and as a gay man living in Greece is this, and not only mine, it is the LGBT community’s perspective.
I made a bit of a parenthesis, like a gap, to get back to the question. These Greeks and other people from Europe formed this organization, NELFA, as you said, we pronounce it NELFA, the network of LGBT families in Europe, that were saying that based on the freedom of movement, which is something that the European Union can secure because it is in the interest of the community of the European community. You cannot be a parent in one country and not be a parent in another country because it is not about just entering one country. That and not only for family reunification purposes, it means that for me to come to Greece, but you also need to, for example, you need to recognize my kid as my own, you need to recognize my spouse.
There was a very big case in the Court of Justice of the European Union, the common case that was like I think it was with Romania about that Romania had to recognize the country had to recognize the legal bond between a same-sex couple regardless of its own legislation because otherwise the freedom of movement of the person, I do not remember if it was a guy that was coming back to his country of origin, was violated. Building on this case as a precedent, this organization was trying to persuade courts and the government that you need to apply that analogically also to family ties to children.
There was a lot of public advocacy. We had a lot of meetings with some people who were close to the prime minister and the team, because the government in Greece had made a committee regarding LGBT people. This was an issue that had been raised, what we are doing with children that already exist abroad and in Greece, and that we have to recognize these children. Some of these families addressed me, and especially there are two women who are very dear to me because we also have a more amicable relationship after all this.
We’re saying, “We have to start this. Somebody has to go to court.” It was a good case because they were women and they were living in Germany and their children that they had with a medically assisted reproduction, but the non-biological parent had to make an adoption in Germany in order for the legal bond to be complete. It was a good case because both of them and the children had dual citizenship, both German and Greek. I am sorry. They were like, “Greece does not allow that, Germany allows that, and they were willing to come back to Greece to secure a work opportunity.”
Leveraging Freedom Of Movement For Cross-Border Family Recognition
The freedom of movement of workers, which is also a hardcore principle in the European Union, was also applicable because you had somebody who wants to travel for a job opportunity and is factually prevented because if she comes to Greece, she will not be able to be recognized as a parent for her own children. We started to ask for the recognition of this German court adoption decision that was saying, “I am allowing the adoption to take place in the Greek legal order.” The impediment, if this is the right word.
What was very strong in these cases is the so-called public policy clause, which is also in many international treaties of international private law. Greece, in the legislation, and other European countries, as well, have a set of rules under which foreign decisions are recognized under these conditions. It must not contradict public policy, which means it is an abstract notion, meaning the basic, core principles of Greek society. The issue was that Greek society, at its core against these families, and they were making arguments like schools, for example, that children are going to be stigmatized in school.
That adoption has a social perspective as an institution, and we have to secure the best interests of the child. An LGBT family is not the right place to be because it can lead to stigma, and it can lead to bullying. The counterargument was that we do not decide the future of a child to be born or that it is in an institution, and it has to choose a family. We are deciding for children who already exist and know this particular family. For the interest of the child in concreto, not in abstract, that was the basic narrative that we were insisting on apart from the legal basis, like the New York Convention on the Rights of the Child, the European conventions, freedom of movement, etc.
The basic argument was this and that we do not have to deal with one case with the legislation in total, but with one single case. Greece is not asked to change its legislation, saying, for example, that same-sex couples can adopt jointly, but it has to say I recognize this family. This started a very interesting legal debate, and we explored a very interesting field legally. In December, I do not remember, I think it was 22, it is actually the decision you mentioned in my thesis, there was another similar case from Bulgaria that went to the Court of Justice with a preliminary ruling, saying, does Bulgaria have to recognize and give a passport to a child that has two mothers who were living in Spain? It can invoke its public policy.
The Court of Justice said that, for the purpose of freedom of movement itself, Bulgaria cannot say that it is an issue for its public policy to recognize the child because it is just one child, and you do not have to change its legislation. You cannot say that you are preventing it from discrimination because this is discrimination, and you have to secure the freedom of movement. Building on this decision, we were saying that it has to be applied broadly, not just for the sake of freedom of movement, because freedom of movement does not mean just to have a passport, for example, and be able to cross borders. It means that I crossed the border but with my family, as it is legal.
Freedom of movement is not just about holding a passport or crossing borders. It means being able to cross borders with your family—legally and together. Share on XThis was a very strong boost in our case, this decision that we were very much focusing on. The other thing that happened was actually the article I had written in the Careful Child Relocation Project, which helped you to notice that you find interesting is that Greece had a very interesting scenario. I did not handle it as an attorney, but I used it a lot to write about it and invoke it in my legal practice. In an international child abduction case, two women were living. The one I think was Greek living in the UK, and they had a common child, and the Greek mother, who was not the biological mother, had full custody of the child.
She took the child, and she came to Greece without the consent of the other parent. The other parent started an international child abduction case with the Hague-1980 Convention, asking for the return of the child. The Greek courts had to decide what we were actually doing. In this scenario, they had to protect the Greek mother because Greece is a country with a lot of people abroad, and usually, when we deal with the Hague Convention, it is in these cases with mothers who do not have a support network in foreign countries and come back to Greece.
This changes a lot how we approach Hague-1980 cases. It is not like the UK, where, for example, there are a lot of fathers asking for their children to come back for example. Some practical and financial conditions are also reflected legally. This mother came to Thessaloniki, a city in the north of Greece, where she was from, with the child. The Hague Convention says that in order to see if there is an illegal removal of the child, we take the country of the previous habitual residence, the jurisdiction that the child flew from, as applicable law.
Public Policy Clashes And The Best Interest Of The Child
The Greek judge was like, “I do not see even the LGBT factor in this case since we are dealing with the applicable law, and the applicable law of the UK gave the mother the right to come to Greece. I do not care, and I reject the application.” The UK mother was trying to say that this is against public policy, and this decision has to be overruled. This dispute was going on and on. At the same time, I am applying for the sake of these two Greek women who are not in a conflictual divorce and are jointly and happily living in Germany with their children to be recognized in Greece.
The first instance court decision was interesting because you could see that the judge had a hard time because it said there is no doubt for this court that they have a totally normal life, they are totally competent in raising their children. It was even calling her co-mothers because I very much insisted that it is not one mother and another one, but it is something that we do not know, it is two mothers. We had affidavits saying, for example, from the godmother that from the beginning they were like two mothers, that the children are dealing with them like two mothers.
We had an affidavit from the grandfather, for example, who was in a little village on an island in Greece and was like, “I am very proud of my grandson because he has my name.” We were trying to show that this family is not that different. I was focusing a bit on the positive side and not on the problems that could be created. What is the problem with my approach as an attorney? The court said, “I do not have any doubt they are very good, there are co-mothers, but we are not ready, Greece is not ready for that.” I go to the court of second instance, the appellate court, and I find this case of international child abduction in Thessaloniki.
A ground or a legal argument in our appeal was that when we come holding hands together, you say we are against public policy, but here we separate. I am not the biological mother. I take her to another country, and you say that this is fine. I think we have discussed it in our private discussion that there is a sociological theory saying that, concerning LGBT rights, there is an approach like saying bad times before good times, that societies are more willing to give rights when something bad happens rather than something good, like wanting to have a child, wanting to have a marriage.
It is interesting because in Greece, the public discussion for the cohabitation agreement, which came into effect in 2015, started after a public figure, an actor, died, and his long-term companion did not have any say in his funeral. It was a really bad time when this happened. This is the setting, and the dispute in Thessaloniki goes on because the Greek mother, in order to secure herself, asks for the UK court decision giving her full custody of the child to be recognized in Greece as well, apart from the Hague Convention trial. This was another trial, and at this trial, there was a very brave judge who said that we cannot say that this decision is against public policy because Greek society is ready to have this kind of family, and I accept the application.
I give this non-biological mother full custody of the child. I think the decision concerned full custody, but this is not the point. In that case, they did not have to recognize the family tie like I had to say in my case, that I was trying to recognize the adoption court case, but they had to recognize the result that I am exercising custody. My case, from my perspective, was even stronger, and in the appeal court, we now have the precedents saying that Greece is ready. What the Athens Court of Appeal said was that the best interest of the child is not something to be judged in abstract.
We could recognize this decision if the best interest of the child commanded it, but nothing bad has happened something bad in that case. They literally said if, for example, there were a death of the biological mother or a divorce, a separation. They said that in that case, they are both happy, they are both a family, so what is the problem? They can come together in Greece, and it was a real paradox. We also exercised the cassation appeal before the Supreme Court in Greece, which is the court of law. It is only ruling in legal matters, not in the substance matters.
We will not have the chance to discuss it because Greece passed the marriage equality bill in February. It is like a happy ending. Although there are still a lot of issues, let us not expand on this right now. That was it. We had the court saying that somebody needs to die for me to be recognized as a mother. The very interesting example is what is happening with Italy, because Italy is like the neighbor of Greece. It is like a better version of ourselves, and the Greeks usually look up to Italy.
Right now, we are more progressive than them concerning LGBT rights because they have a very right-wing president, but in Italy, they had. I was using a lot of Italian case law as legal theory. The same cases of people trying to be recognized. There were a lot of first instance courts, especially in the north of Italy, like Padova, Milano, saying that, based on the best interest of the child, we need to issue certificates naming both partners as parents of the children.
These were overruled by the new government. Before they were overruled, there was a high court decision saying that there was a problem, but the legislation needed to change. In this case, where a Supreme Court was ruling, it was also a case of conflict, a case of two mothers, where the non-biological one could not have contact with her children because she was not recognized. Again, as a parallel, it was a bad case making the judge pay attention to that. This was a bit of the context of the case. It took me a bit longer to explain, but it is this.
Elias, what do you think the next challenges are in this area in the EU generally or in Greece in particular?
Right now, the EU, and this is where my thesis was in my master’s, has a proposal for regulation. Regulation is like a law that concerns all European countries regarding a parenthood certificate. The purpose is to establish familial ties to be recognized in all countries. It comes as a follow-up of many other regulations that were, for example, the regulation concerning the maintenance obligation. Alimony was saying that the court that is about to grant maintenance rights will not rule on the bond that creates the alimony obligation.
If a couple is living abroad in Germany and they have children, the children deserve alimony, and if this case were to be ruled in Greece, the Greek judge would not matter, or in the past, he would not recognize it because his subject of the trial would be alimony. This was like a huge issue in Europe. It is not closed in Europe right now because what a family is is a preliminary ruling that comes into force and is applied in most regulations, like who has hereditary rights, who has alimony rights.
Depending on the law that would be deemed applicable in each case, you could have totally different results. It is not only a jurisdiction issue, but it is also about applicable law, and there is nothing saying that LGBT families are recognized. For example, there is nothing saying that if an abduction case were to happen in Hungary. Hungarian courts would say that the child has to go back to the non-biological same-sex parent. Greece, to connect the two discussions, made a good precedent in that I do not care about whether I am recognizing or I am not recognizing the familial bond. I care about the result. I care about the best interests.
Greece was very progressive now in its legislation regarding the recognition of parenthood abroad. It only gave adoption rights to same-sex couples in Greece, so no rights to medically assisted reproduction still. It gives the ability for each partner, for example, if they are married, because adoption is linked with marriage in Greece, even for straight people, if you marry, and now you can marry. This is why it was the Marriage Act.
You can adopt the child of your partner, or you can jointly adopt one child together. This was a huge thing because this is why Greece did not have marriage equality until now, because marriage equality would give same-sex couples the right to adopt without any other legislative change. It was a very hot potato for the government because it did nothing to change the marriage, but it gave children rights, and there was a lot of public debate. A lot of hate speech, especially from parts of the church, because the Orthodox Church is not separate from the Greek state.
They are linked. They do not have a role in political sayings, but they are in our constitution, they are very interlinked with the Greek Orthodox Church, and they openly condemn the bill. They try even now, they are extra saying that you are out of the Orthodox community to politicians who voted in favor of the marriage bill. It is ridiculous, it is like a joke. They do not allow them to enter churches. Greece was like that, and from one day to another, marriage equality was passed, and also passed a specific article, I think it is article 11 of the Marriage Act.
That says I recognize every familial relationship formed abroad, I recognize it even if it is, for example, surrogacy or medically assisted reproduction in any other way in women. It is like a totally progressive and open private international law rule. NELFA was very decisive on this particular article in the public debate because there were a lot of men also doing surrogacy. Regardless if Greece allows it or not, the applicable law of the other country is what I am recognizing here without any other rules.
The Impact Of Greece’s New Marriage Equality Bill
It is even more progressive than the proposal of the European Union in this concept because, in the European Union, they were trying to make some rules of applicable law. Just ensure that the law that would be applicable would be the one that would recognize both parents. They were trying to solve it in a more legally proper way in Greece. Now they did something like what had happened in the past with political weddings, because in the past, Greece did not recognize a wedding that was not religious. In order to recognize many of them who had made this wedding abroad, they made something like this provision that says you are recognized.
Really, this application has this, but it creates an imbalance because it is like Greek people are able to travel abroad, go to surrogacy clinics abroad, pay this money, and Greek people who are in Greece cannot do that. They cannot go abroad, they cannot live abroad, so for them, the rights are more limited. The interesting thing about the new marriage bill and how it changes the field of family law in Greece is that, weirdly, it has also created another inequality between women and men because same-sex women right now can proceed with medically assisted reproduction. Nobody would check if she has an infertility problem or something, because clinics do it like that, they just take a sperm donor and complete the procedure.
They can give birth as single women without, of course, biologically having sex with another man or something. They can get that, and then they can marry because you have to be single in order to do that. You cannot be married or even in a cohabitation agreement with another woman and go through medically assisted reproduction. You have to be single. The clinics are advising the women, saying, “Do this first, and then do the registration agreement, or even further dissolve the cohabitation agreement. Do this, and then do it again.” Now this is even crazier because we have marriage here, so they are beginning to say this has to change, you cannot just solve the marriage like that, do the medically assisted reproduction, and then marry again.
It is very convoluted.
This is a woman, and then they can marry, and they can adopt a common child that does not have a legal father, who would have to give consent to the adoption. You have a perfect legal method to have a common child of the same sex for women, for lesbians, let us say in general, but for gay men, you cannot do that. There were, as I said before, some cases when a single man went to ask for permission to use a surrogate. The permission was granted analogically because the concept was that it is not a matter of biology.
After all, it is in deficiency that you need the other sex to procreate, let us say. Women are in the same situation because they use the sperm, they use genetic material that they do not have, and men need the same, plus the uterus, let us say, very cynically. Some court decisions were saying that this had to be applied analogically, and then they were overruled by a state intervention, actually. Now, in a conference with some professors of family law in Greece, after the new bill, I heard that there is one case again that granted this permission to single men, but the decision is not published, so I do not have any information.
It is just that this again comes to be challenged in courts at the court level. The other thing in Greece that is a claim of the LGBT community is that we want the presumption of fatherhood, if I am correct, that if a child is born in marriage, it is the guy’s child or in a cohabitation agreement as well. They are saying that if, for example, I am a woman in a civil partnership with another woman and the one gives birth, why shouldn’t I also be recognized not as a father, of course, but as a parent. They are asking for this presumption to be analogically expanded. There is again a lot of controversy.
More conservative scholars are saying no, it is a matter of biology is not the same. Others are saying that maybe this could change, others are saying that the law has to change again, and that this law is deficient, it is not dealing with the subject completely. Another very interesting thing that the government is not seeing right now is trans people. I also want to do an essay about it, seahorse fatherhood. What happens with a trans man who is impregnated and gives birth to a child in a cohabitation agreement? We have a same-sex couple again? Not even same-sex.
What happens if it is a straight trans man? If I am saying it correctly? In a relationship with another woman, he is the straight man, a trans straight man. She is a cisgender woman. A child is born, but is born from the man. Where is biology? Why doesn’t the law recognize it? It is not the law. It is how the practitioners of the law approach these things in Greece. All these things are going to build up right now, and they are going to be very interesting, at least legally.
Future Challenges Regarding Transgender Parenthood
It already exists in Europe. If it exists in Europe in one European country, in the same way, it will come, it will circulate. What would happen, for example, if the proposal for the recognition of parenthood came into force? We have the Swedish certificate of parenthood, saying that here this is the father and this is the mother? Why wouldn’t they be granted the same legal treatment in Greece as any other straight couple working?
Looking at creating an article or a piece about the seahorse fatherhood.
Trans parenthood in general is still Greece, for example, even if you do the legal process to be legally recognized as your gender. Concerning children that you had before in papers, you are still dealt as the dead sex. I could be a woman right now, but if I had children with my previous partner, let’s say, it would be a very common thing among trans people. In legal documents anything I would be a father for these children with my dead name.
This is another thing. There were demands for it to be solved as well, but the balances in the parliament were already so sensitive that you could not even hear them. It is important that it was a right-wing government that put this bill into force in Greece, so they had to appease their more conservative voters. I recognized it. It was very brave of the government. Right now, also in Germany, they are saying that it is against the constitution not to recognize this form of parenthood. It is something that is going to come. If we discussed that in Greece right now, they would be I do not know.
You would be welcome, probably.
That is fantastic. We will really look forward to hearing your progress on your piece about seahorse fatherhood.
If you are interested, as you see, I can talk and talk.
Elias, thank you so much for sharing your wisdom and insight with us. I am going to quibble a little bit with what you said at the beginning because I think you are a wise adviser. Thank you for being part of our council of wise advisers and sharing all of your great experience and knowledge with us, and we look forward to whatever you do next.
Continuing the conversation.
It is my pleasure. It is very interesting to see how you deal with these things because sometimes it is like another planet. We are living in our own universe, and then you discuss with legal professionals from the world, and they are like, “This happens.” It is good. You get a bit out of the matrix, let us say. Sometimes we are in the matrix.
It is a parallel universe. It is science fiction, right? Except it is not.
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About Elias Yiannatsis
Elias Yiannatsis & Associates Law Office was founded in 2023 by Elias Yiannatsis, former partner of the Yiannatsis & Associates law firm. With experience across a broad litigation spectrum, the office handles mostly civil law cases with a particular focus on family disputes and specialization in international family law cases.
Our law office has successfully dealt with cases that require a deep understanding of international law and cross-border coordination of actions in foreign legal systems, whether they concern minors (international child abduction and relocation, establishment of kinship through adoption or surrogacy abroad) or the settlement of property relations. We handle each case personally and with empathy, emphasizing the amicable resolution of disputes even when they are brought before the courts.
Elias Yiannatsis, member of the Athens Bar Association, is a graduate of the Athens Law School and holds a master’s degree in Private International Law and International Transactions Law from the same university He is a volunteer member of the legal team of NELFA (Network of European LGBTIQ* Families Associations), which played a decisive role in the passing of the bill on marriage equality in Greece, and legal advisor to the non-profit organization “Proud Parents.”
He collaborates with the UK-based non-profit organization GlobalARRK and the networks carefulchildrelocation.com and international-divorce-lawyers.com, where he participates as a country reporter for Greece. He speaks English, French, German, and Italian.