CASTEL MAGGIORE, Italy — When 1-year-old Kirsi Bestetti tripped and cut her lip at her grandparents’ house last summer, her mother Elisa Bestetti rushed her to the emergency room, panicky about all the blood.
Once there, she also worried whether the hospital staff would accept her as Kirsi’s mother.
Bestetti is Italian, but towheaded Kirsi is Finnish like her birth mother, Emmi Pihlajaniemi. The two women have been married in all but name for five years at home in Finland, and each has given birth to a daughter who has been legally adopted in Finland by the other partner.
But Italy does not allow a child to have two mothers. Same-sex couples in Italy are not allowed to marry, to register partnerships, to adopt a child or benefit from assisted reproduction. Within the European Union, such family law issues remain the jealously guarded domain of the 27 individual countries, each with its own history, culture and legal tradition.
On the intertwined Continent, which prides itself on its open borders and a single market — as well as on being a trailblazer in banning discrimination based on sexual orientation, even electing openly gay politicians to high office — the resulting differences are more than symbolic. Increasingly they are leading to practical difficulties in all kinds of areas, like taxes, parental rights and inheritances, as people move around for work, love or just vacation.
“It’s a bit like baking a cake and then not wanting anybody to eat it,” said Michael Cashman, a gay-rights advocate and longtime member of the European Parliament from Britain. “But if you believe in freedom of movement — ‘Europe without borders’ — this is what we have to address: the inequalities that people face purely because of someone’s opinion.” In Kirsi’s case, the hospital ended up treating her, and the split lip was not serious. A year later there is not even a scar. But concerns linger over the family’s legal status when they venture outside of Finland.
“I don’t know if I would travel alone with Kirsi,” said Bestetti, who recounted the tale as Kirsi fidgeted on her other mother’s lap in a shady spot by the barn on the Bestetti family farm, just outside Bologna, Italy. “The Finnish state recognizes that I’m her parent, but here I’m nothing.”
The situation regarding marriage is similar in some ways to the hodgepodge of state laws in the United States. A significant difference, however, is the 1996 Defense of Marriage Act, which prevents the federal government from recognizing same-sex marriage and exempts states without same-sex marriage from having to recognize those performed in the few states that allow it. (In its next term, the Supreme Court is expected to hear a constitutional challenge to the part of the law requiring the federal government to deny benefits to same-sex married couples.)
In Europe, a handful of cases challenging cross-border obstacles have risen to European-level courts, but the resulting decisions have been limited in scope. Court observers say the judges, drawn from each member state, are keenly aware of the lack of consensus.
The European Commission, the guardian of the EU treaties, has been working on ways to make life easier for people who move across borders. But even though it has been studying for two years how to facilitate the free circulation of civil status documents, including birth, death and marriage certificates, the proposal is still awaiting action. And when it goes forward later this year, the plan may not cover marriage.
“For now, I think it is important to take one step at a time,” Viviane Reding, the European justice commissioner, said in an emailed response to questions.
Opponents argue that any attempt in Brussels to require countries to recognize same-sex marriage certificates issued in another member state would, in effect, require them to introduce same-sex marriage whether they wanted to or not.
“A general application of the rule of mutual recognition of civil status documents will result in a situation where the political and social choices of some member states would be imposed on all the others,” CARE for Europe, a Christian lobby group, argued in its submission to the commission, echoing numerous opponents.
So same-sex couples and families are fighting their own battles — often at considerable expense.
Brad Brubaker, an Ohio native, met his British partner, Paul Feakes, in California in 1995. Brubaker moved to London and eventually acquired British citizenship. They entered a civil partnership, identical in all but name to marriage. Three years ago they moved to Italy and decided to open an art gallery in the Tuscan seaside town of Pietrasanta.
Italy did not recognize their partnership. In contrast to the normal treatment for married couples working together, they were forced to register the gallery in Brubaker’s name alone, while Feakes had to be listed as an employee — with a contract and payroll and all the costly extra paperwork that entailed.
Brubaker and Feakes decided not to go to court. Others have, with mixed results.
Tomasz Szypula, 32, a native of Poland, met his Spanish partner, Jose Antonio, in 2002 while studying in Krakow, Poland. They later moved to Warsaw and bought an apartment together. In 2010, five years after Spain legalized same-sex marriage, they decided to go to Antonio’s hometown near Alicante and marry.
“Marriage, I think, is a kind of affirmation — you tell each other we are together in good health and bad,” Szypula said. “And it’s something that you do for other people, like your family, friends and neighbors.”
But two years later, they are still single. The Polish authorities, seeing a man’s name on Szypula’s paperwork as his future spouse, refused to issue the necessary legal document confirming that he was eligible to be married.
The Polish Constitution, adopted in 1997, defines marriage as a union of a man and a woman, and Polish officials have argued that is an “essential condition” for issuing the certificates. So far, the Polish courts have agreed; a decision on the couple’s appeal is due this fall.
“It’s not just a legal case; it’s also a hot political issue here,” Szypula said. “The judges, they do what they can to take it slow.”
With the exception of Italy and Malta, where the Vatican’s influence is strong, and Greece and Cyprus, the divisions in the EU are mostly between the more liberal West and the more conservative, formerly Communist-ruled East, said Robert Wintemute, a professor of human rights law at King’s College London.
Denmark, which introduced registered partnerships in 1989, became, in June, the latest EU member to make its marriage laws “gender neutral,” joining the Netherlands, Belgium, Spain, Sweden and Portugal. Ten other of the bloc’s countries allow some form of registered partnership or civil union. Of those, France, which has a new Socialist government, announced in July its intention to move to full marriage and adoption rights next year. Britain, Luxembourg and Finland are talking about following suit.
That leaves 11 members of the EU that do not recognize gay marriage or registered partnerships. Poland, Latvia and Bulgaria have constitutional bans.
Given the lack of legal security, Bestetti said she preferred living in Helsinki, where life with Kirsi and her 4-year-old sister, Irma, is more normal. But she and Pihlajaniemi visit the small farm here in Castel Maggiore a couple of times a year to see family and friends. They are expecting their third child, a boy, in mid-August, and are looking for a name that will work in both Finnish and Italian.
Still, they worry how they will explain to their children that they have two parents in one country and only one parent in another, or why some of the older Italian relatives still refer to Pihlajaniemi as the girls’ “aunt.”
“I don’t know what they’re going to think,” Pihlajaniemi said. “For the children, it’s really an absurd situation.”