Review of our case on ESCOL website.The European Commission on Sexual Orientation Law (ESCOL) is a non-governmental and non-political network of legal experts.
link:
http://www.sexualorientationlaw.eu/news/2010-03-08%20Slovenia.html
Thursday, May 6, 2010
English Translation of Narobe article
Link to the original article: http://narobe.si/stevilka-13/najboljsa-druzina
Družina
translated by:
Jasna Magić
jasnamagic@yahoo.com
The best family in the world
Marijan and Christian are Slovenes who have been living and working in America for the past 25 years. There they also registered their partnership of 30 years. In Slovenia they are mostly know as the couple who, in the States, adopted a baby girl and the court’s decision on adoption was also confirmed valid by the Slovene court as of March 1st 2010. This case presents an important milestone in the Slovene Law. For the Narobe magazine, Christian shared their experience, with Marijan in the background, on the process of adoption, their expectations, disappointments, happy endings, and never ending battle for equality. The family that could be the subject of envy by many is, amongst travels, work and play, carefully following the on-goings in Slovenia and is impatiently awaiting adoption of the new proposal of the Slovene Family Law.
They decided to adopt more than six years ago.
The desire to adopt was around for a couple of years, but we were always under the impression that the whole process is very complicated. It was only when we learned thorough a friend about a couple that adopted, that we finally decided to investigate the topic more in depth.
Did you turn to the adoption agency for help?
No, we were in touch with adoption specialist and she found us a birth mother willing to give her child up for adoption. We decided for private adoption as otherwise the process would be too long and too complicated and we already filed for legal adoption when still in the process of searching for a mother. We were working together with adoption agency in New Jersey that prepared a home study including references and other additional requirements, such as financial and social competences for becoming parents
Were you treated equally to heterosexual couples or did you have to face additional barriers as a gay couple?
No, there was absolutely no difference. From the beginning we were treated as any other couple wanting to adopt. There was a lot of bureaucracy in terms of collecting papers, statements from co-workers and family as that was all part of the study that the agency was putting together. We both had to fill in a lot of questionnaires on our lives and all that information was subsequently also checked by the social services. Within the first year, when the adoption wasn’t official yet, we had a lot of announced and unannounced visits from social services. They also interviewed and assessed everyone, who was staying with us, the nanny, all the guests, and all that in order to protect the interest of the child.
How long was the preparation process?
The study was complete relatively quickly. The center for social work from New Jersey took three months to confirm that we are suitable as parents. Part of the preparation process was also our portfolio, a booklet for potential mothers, which included information about us and statements as well as our wishes and expectations.
Was it a demanding process?
It was all very challenging, financially and emotionally. Financially, Federal Adoption Law as well as State Adoption Law, strictly set payment of expenses incurred in connection with the mother's pregnancy and the child's birth For example, all the payments to the mother need to be approved by a lawyer. The law is very clear on that and needs to be followed without exception as otherwise payments to the mother could be understood as a direct compensation for the child, i.e. as a payment for the child. Emotionally, however, the process was even harder. Namely, the agency found the first mother quite quickly; she picked us up based on our portfolio. We were present at the birth of a baby girl on 24th December 2004 and were in touch with the baby constantly, for the following two days, when on the third day the mother changed her mind and decided to keep the baby.
How did you manage to overcome that?
We were completely devastated. It’s hard to describe how we felt then. Those were the hardest days and that little girl is still in our hearts and minds. However, soon after January 1st 2005 we got a call from our adoption specialist, who wanted to know if we wanted to continue with the process. For us it was a very hard decision, however we decided to continue, with an even greater desire and deeper knowledge on what our decision might bring. Soon after, we found out that the specialist was already in touch with a birthmother, who was rejected, when the selected couple found out that the father of the baby is black. For us, of course, that was not a problem and the specialist sent out our portfolio on the same day. There were some concerns that the mother might have hesitations because we are a gay couple, but when we introduced ourselves, it became clear that our sexual orientation is not going to be a problem. All she wanted was an open adoption. We were overexcited, but at the same time feared that she might change her mind as well.
But it all worked well in the end…
Yes, the baby was supposed to be born on January 25th 2005, exactly a month after the first experience, that didn’t work out. The mother then called us already on January 4th as she was told that she will probably give birth earlier than predicted. In the end Zora was born on January 5th 2005. Everything was happening so fast then. We flew to Phoenix in one day, drove to the hospital and met the mother and our Zora. We were overjoyed. We obtained physical responsibility for Zora in the hospital one hour after we got there and thus became responsible for our daughter. As Zora was born prematurely she didn’t have the sucking reflex, so we had to become active parents immediately. We fed her every two hours for the next three days. The nurses and other staff were incredible. They were all fond of us and none of them had any negative comments.
You mentioned an open adoption, what is that?
Open adoption – in short – enables the birthmother to stay in touch with the child and vice versa, the child can obtain information on biological parents at any time. The scope of open adoption is set by the birth as well as adoptive parents. They need to come to an agreement how and when they will be in touch, regarding the child. We consented to open adoption as we understand and acknowledge that Zora will always have a mother and two sisters. Zora speaks to her birthmother almost once a week and we send her pictures and reports on how Zora is doing.
How did Zora change your lives and how was she accepted by the rest of your family?
Zora introduced a completely new dimension to our lives. We are so happy and extremely grateful to Zora's mother for her gift. Zora is the biggest treasure and a daily source of happiness and fulfillment in our, as well as the lives of our family and friends all over the world. Our family and friends, as well as our working environment have really been there for us during the whole process and provided us with all the help we needed. I got 3 months of paternity leave at work, which here in the States is not stated by law, which was equal to the amount of leave the mothers get in the same company. We never heard any negative comments about out family and in the States as well as in Slovenia all the people we met only had positive reactions and Zora always tells everyone »We are the best family in the world!«.
You are now officially Zora's parents also in here in Slovenia. What does the final decision of the Supreme Court of the Republic of Slovenia mean to you?
The reason for our application four years ago was that Zora should have the same rights also in Slovenia and that she should be acknowledged as our daughter and obtains Slovene citizenship. We are well aware of the importance of the court’s decision and are very grateful to Urša Chitrakar, our lawyer, for her extraordinary work, but also to all the judges who were deciding on this case and decided which interests matter most. All involved in this case knew well from the beginning that it would be a long process, nonetheless, important for us as a family and the Slovene society. We were all extremely happy when the final decision was out, but even more that the decision was final just in time when the proposal on the new Family Law is being debated on.
Kako doživljata razpravo o novem Družinskem zakoniku, predvsem tisti del o istospolnih družinah?
How is to follow the debate on the proposal on the new Family Law, especially the part on the same-sex families?
Following the comments, I can see we were extremely lucky so far. Now, more than ever before, we see how Slovenia moved away from respecting human rights and it was due to the public comments that we also wanted to come out to the media and present our family. We wanted to show that we are as any other family.
An interview with lawyer Urša Chitrakar, who represented Marijan and Christian in the process of recognition and enforcement of the foreign judgment on adopting a child.
Why did you decide to take on this case?
I knew that Slovene courts recognize foreign judgment’s on adoption; however I never before noted that the courts here would deicide on recognizing such judgments where the adoptive parents are a same-sex couple. Christian, Marijan and Zora were the first gay family I met. When we first got together, in New York, I immediately realized that there shouldn’t be any reasons why same-sex couples shouldn't have or be able to adopt children. That is why I thought it important that the recognition of such adoption is argued, of course I was also curious of the court’s reaction and how it will decide.
How long was the process and what was it like for you?
The process started in November 2006 and finished in March 2010. Things were not unraveling as I expected, as I firmly believed at first that the court would refuse our case already at the first stage and I would have to appeal to the Supreme and Constitutional court and maybe later even to the European court of Human Rights in Strasbourg. Thus I spent a lot of time in the beginning, studying the case law of the European Court of Justice.
Did you encounter any challenges in the process and how did you overcome them?
The first surprise happened already at the beginning when the district court stopped the process and appealed to the Constitutional court for a constitutional review of the article 135 of Marriage and Family Relations Act and The Registration of a Same-Sex Civil Partnership Act. The court namely believed that those two acts, to be used in the process, are unconstitutional and not in line with the European Convention on Human Rights as they don't allow adoption to extramarital union and same-sex couples and thus create unequal legal position. Constitutional court however did not deliver a decision on whether those two acts are unconstitutional as it considered that the district court in the process of recognizing a foreign judgment doesn't have to use (controversial) articles from Marriage and Family Relations Act and The Registration of a Same-Sex Civil Partnership Act, but the Act that regulates the procedures and conditions for recognition of the foreign judgment i.e. Private International Law and Procedure Act.
Interesting thing happened also later in the process; namely when the American judgment was recognized and legally binding also here in Slovenia, we filed an application to enter Zora into the Slovene birth registry. Administrative unit, due to the existent computer software, could not enter the names of both fathers, as the software presupposed a mother and a father. That is why the software needed to be modified.
And the last surprise was filing of a request for protection of legality by the State prosecution office after the American judgment was already recognized and legally binding.
Why, do you think, the State prosecutor filed a request for protection of legality?
The State prosecutor can file a request for protection of legality against any legally binding judgment, if the regulations from Civil Procedure Act are met. The State prosecutor’s office believed that the district court made a mistake in assessing regulations and that the effects of recognition of the foreign judgment are in discrepancy with public policy of the Republic of Slovenia as they compromise legal and moral integrity of the existent Slovene legislation.
What does this decision mean for the Slovene law case and the current process of adopting the new proposal of the Family Law?
I think it’s very important that already the district court expressed doubt that the current legislation on family and same-sex couples are in line with the Slovene Constitution. The same question was also addressed by the Superior court in their judgment. In Slovenia it is obviously the judges that call for changes and point out that the current Family Law is obsolete.
By recognizing a foreign judgment on adoption however an absurd situation occurred, as same-sex couples in Slovenia, according to currently still valid legislation, cannot become parents by adopting, but they can adopt abroad and ask for the adoption to be legal in Slovenia. Similarly, another inconsistency, in Slovenia an individual, regardless of their sexual orientation can adopt, whereas same-sex couple cannot.
The case is now closed and Christian and Marijan finally decided to bring their story to the media. At first however they were refusing interviews as you advised them to do so, why?
As I believe that a widespread media and public debate on (whichever) legal topic that is in the legal proceeding can exert pressure on judges and might have a negative impact on their final decision.
Družina
translated by:
Jasna Magić
jasnamagic@yahoo.com
The best family in the world
Marijan and Christian are Slovenes who have been living and working in America for the past 25 years. There they also registered their partnership of 30 years. In Slovenia they are mostly know as the couple who, in the States, adopted a baby girl and the court’s decision on adoption was also confirmed valid by the Slovene court as of March 1st 2010. This case presents an important milestone in the Slovene Law. For the Narobe magazine, Christian shared their experience, with Marijan in the background, on the process of adoption, their expectations, disappointments, happy endings, and never ending battle for equality. The family that could be the subject of envy by many is, amongst travels, work and play, carefully following the on-goings in Slovenia and is impatiently awaiting adoption of the new proposal of the Slovene Family Law.
They decided to adopt more than six years ago.
The desire to adopt was around for a couple of years, but we were always under the impression that the whole process is very complicated. It was only when we learned thorough a friend about a couple that adopted, that we finally decided to investigate the topic more in depth.
Did you turn to the adoption agency for help?
No, we were in touch with adoption specialist and she found us a birth mother willing to give her child up for adoption. We decided for private adoption as otherwise the process would be too long and too complicated and we already filed for legal adoption when still in the process of searching for a mother. We were working together with adoption agency in New Jersey that prepared a home study including references and other additional requirements, such as financial and social competences for becoming parents
Were you treated equally to heterosexual couples or did you have to face additional barriers as a gay couple?
No, there was absolutely no difference. From the beginning we were treated as any other couple wanting to adopt. There was a lot of bureaucracy in terms of collecting papers, statements from co-workers and family as that was all part of the study that the agency was putting together. We both had to fill in a lot of questionnaires on our lives and all that information was subsequently also checked by the social services. Within the first year, when the adoption wasn’t official yet, we had a lot of announced and unannounced visits from social services. They also interviewed and assessed everyone, who was staying with us, the nanny, all the guests, and all that in order to protect the interest of the child.
How long was the preparation process?
The study was complete relatively quickly. The center for social work from New Jersey took three months to confirm that we are suitable as parents. Part of the preparation process was also our portfolio, a booklet for potential mothers, which included information about us and statements as well as our wishes and expectations.
Was it a demanding process?
It was all very challenging, financially and emotionally. Financially, Federal Adoption Law as well as State Adoption Law, strictly set payment of expenses incurred in connection with the mother's pregnancy and the child's birth For example, all the payments to the mother need to be approved by a lawyer. The law is very clear on that and needs to be followed without exception as otherwise payments to the mother could be understood as a direct compensation for the child, i.e. as a payment for the child. Emotionally, however, the process was even harder. Namely, the agency found the first mother quite quickly; she picked us up based on our portfolio. We were present at the birth of a baby girl on 24th December 2004 and were in touch with the baby constantly, for the following two days, when on the third day the mother changed her mind and decided to keep the baby.
How did you manage to overcome that?
We were completely devastated. It’s hard to describe how we felt then. Those were the hardest days and that little girl is still in our hearts and minds. However, soon after January 1st 2005 we got a call from our adoption specialist, who wanted to know if we wanted to continue with the process. For us it was a very hard decision, however we decided to continue, with an even greater desire and deeper knowledge on what our decision might bring. Soon after, we found out that the specialist was already in touch with a birthmother, who was rejected, when the selected couple found out that the father of the baby is black. For us, of course, that was not a problem and the specialist sent out our portfolio on the same day. There were some concerns that the mother might have hesitations because we are a gay couple, but when we introduced ourselves, it became clear that our sexual orientation is not going to be a problem. All she wanted was an open adoption. We were overexcited, but at the same time feared that she might change her mind as well.
But it all worked well in the end…
Yes, the baby was supposed to be born on January 25th 2005, exactly a month after the first experience, that didn’t work out. The mother then called us already on January 4th as she was told that she will probably give birth earlier than predicted. In the end Zora was born on January 5th 2005. Everything was happening so fast then. We flew to Phoenix in one day, drove to the hospital and met the mother and our Zora. We were overjoyed. We obtained physical responsibility for Zora in the hospital one hour after we got there and thus became responsible for our daughter. As Zora was born prematurely she didn’t have the sucking reflex, so we had to become active parents immediately. We fed her every two hours for the next three days. The nurses and other staff were incredible. They were all fond of us and none of them had any negative comments.
You mentioned an open adoption, what is that?
Open adoption – in short – enables the birthmother to stay in touch with the child and vice versa, the child can obtain information on biological parents at any time. The scope of open adoption is set by the birth as well as adoptive parents. They need to come to an agreement how and when they will be in touch, regarding the child. We consented to open adoption as we understand and acknowledge that Zora will always have a mother and two sisters. Zora speaks to her birthmother almost once a week and we send her pictures and reports on how Zora is doing.
How did Zora change your lives and how was she accepted by the rest of your family?
Zora introduced a completely new dimension to our lives. We are so happy and extremely grateful to Zora's mother for her gift. Zora is the biggest treasure and a daily source of happiness and fulfillment in our, as well as the lives of our family and friends all over the world. Our family and friends, as well as our working environment have really been there for us during the whole process and provided us with all the help we needed. I got 3 months of paternity leave at work, which here in the States is not stated by law, which was equal to the amount of leave the mothers get in the same company. We never heard any negative comments about out family and in the States as well as in Slovenia all the people we met only had positive reactions and Zora always tells everyone »We are the best family in the world!«.
You are now officially Zora's parents also in here in Slovenia. What does the final decision of the Supreme Court of the Republic of Slovenia mean to you?
The reason for our application four years ago was that Zora should have the same rights also in Slovenia and that she should be acknowledged as our daughter and obtains Slovene citizenship. We are well aware of the importance of the court’s decision and are very grateful to Urša Chitrakar, our lawyer, for her extraordinary work, but also to all the judges who were deciding on this case and decided which interests matter most. All involved in this case knew well from the beginning that it would be a long process, nonetheless, important for us as a family and the Slovene society. We were all extremely happy when the final decision was out, but even more that the decision was final just in time when the proposal on the new Family Law is being debated on.
Kako doživljata razpravo o novem Družinskem zakoniku, predvsem tisti del o istospolnih družinah?
How is to follow the debate on the proposal on the new Family Law, especially the part on the same-sex families?
Following the comments, I can see we were extremely lucky so far. Now, more than ever before, we see how Slovenia moved away from respecting human rights and it was due to the public comments that we also wanted to come out to the media and present our family. We wanted to show that we are as any other family.
An interview with lawyer Urša Chitrakar, who represented Marijan and Christian in the process of recognition and enforcement of the foreign judgment on adopting a child.
Why did you decide to take on this case?
I knew that Slovene courts recognize foreign judgment’s on adoption; however I never before noted that the courts here would deicide on recognizing such judgments where the adoptive parents are a same-sex couple. Christian, Marijan and Zora were the first gay family I met. When we first got together, in New York, I immediately realized that there shouldn’t be any reasons why same-sex couples shouldn't have or be able to adopt children. That is why I thought it important that the recognition of such adoption is argued, of course I was also curious of the court’s reaction and how it will decide.
How long was the process and what was it like for you?
The process started in November 2006 and finished in March 2010. Things were not unraveling as I expected, as I firmly believed at first that the court would refuse our case already at the first stage and I would have to appeal to the Supreme and Constitutional court and maybe later even to the European court of Human Rights in Strasbourg. Thus I spent a lot of time in the beginning, studying the case law of the European Court of Justice.
Did you encounter any challenges in the process and how did you overcome them?
The first surprise happened already at the beginning when the district court stopped the process and appealed to the Constitutional court for a constitutional review of the article 135 of Marriage and Family Relations Act and The Registration of a Same-Sex Civil Partnership Act. The court namely believed that those two acts, to be used in the process, are unconstitutional and not in line with the European Convention on Human Rights as they don't allow adoption to extramarital union and same-sex couples and thus create unequal legal position. Constitutional court however did not deliver a decision on whether those two acts are unconstitutional as it considered that the district court in the process of recognizing a foreign judgment doesn't have to use (controversial) articles from Marriage and Family Relations Act and The Registration of a Same-Sex Civil Partnership Act, but the Act that regulates the procedures and conditions for recognition of the foreign judgment i.e. Private International Law and Procedure Act.
Interesting thing happened also later in the process; namely when the American judgment was recognized and legally binding also here in Slovenia, we filed an application to enter Zora into the Slovene birth registry. Administrative unit, due to the existent computer software, could not enter the names of both fathers, as the software presupposed a mother and a father. That is why the software needed to be modified.
And the last surprise was filing of a request for protection of legality by the State prosecution office after the American judgment was already recognized and legally binding.
Why, do you think, the State prosecutor filed a request for protection of legality?
The State prosecutor can file a request for protection of legality against any legally binding judgment, if the regulations from Civil Procedure Act are met. The State prosecutor’s office believed that the district court made a mistake in assessing regulations and that the effects of recognition of the foreign judgment are in discrepancy with public policy of the Republic of Slovenia as they compromise legal and moral integrity of the existent Slovene legislation.
What does this decision mean for the Slovene law case and the current process of adopting the new proposal of the Family Law?
I think it’s very important that already the district court expressed doubt that the current legislation on family and same-sex couples are in line with the Slovene Constitution. The same question was also addressed by the Superior court in their judgment. In Slovenia it is obviously the judges that call for changes and point out that the current Family Law is obsolete.
By recognizing a foreign judgment on adoption however an absurd situation occurred, as same-sex couples in Slovenia, according to currently still valid legislation, cannot become parents by adopting, but they can adopt abroad and ask for the adoption to be legal in Slovenia. Similarly, another inconsistency, in Slovenia an individual, regardless of their sexual orientation can adopt, whereas same-sex couple cannot.
The case is now closed and Christian and Marijan finally decided to bring their story to the media. At first however they were refusing interviews as you advised them to do so, why?
As I believe that a widespread media and public debate on (whichever) legal topic that is in the legal proceeding can exert pressure on judges and might have a negative impact on their final decision.
Subscribe to:
Posts (Atom)
Posts
