Beyond the binary: towards gender-neutral Belgian parentage law? A normative and comparative law research concerning the desirability of gender neutralization of the Belgian civil code (R-11913)

Almost daily we are confronted in the media with large and small legal upheavals that expose the global search for a renewed view of the male-female relationship in society. The trend in Western society is breaking down the barriers around gender: men and women should function on equal terms. The reality of permanently uninterrupted marriages and unaffected biological creation of progeny is no longer. Today, times and social structures have changed, science and technology have been fundamentally evaluated and the legislator seems to be lagging behind. This study therefore examines how this social evolution has been followed and translated into the Civil Code. The Belgian Civil Code has its roots in a time where inequality between men and women was put forward as an ideal, but hangs with its crown in an atmosphere of gender equality. In our research we emphasize one specific aspect of Belgian family law: parentage. In recent years, some legislative initiatives and regulations in Belgian parentage law have already demonstrated an innovative view on gender in society. In this evolution towards gender-neutral legislation, the introduction of co-maternity really came to be seen as a turning point. Since January 1st 2015, a child can have a mother and a co-mother by virtue of original parentage. Nevertheless, the legislator seems to have lost sight of several political, scientific and sociological trends, raising a series of questions about the presupposed equalization between men and women and gender-neutrality in general. In this context, we intend to investigate the desirability of gender-neutral Belgian parentage legislation by means of an extensive normative and comparative law analysis. The all-embracing question that the present study will address is the following: : "is it necessary to make a gender-neutral Belgian parentage law? If so, why and how would it be implemented in the Belgian Civil Code?" One starts at the beginning and that is why the research begins with a historico-legal study of the Civil Code and then traces the evolution of these provisions up to the present day, viewed from a perspective of gender neutrality. The ultimate aim is to look for past or present motives that encourage the abolition or maintenance of existing gender distinctions. This quest is characterized by a focus on equality, incarnated in a standard of nondiscrimination anchored in the Belgian Constitution. If the conclusion would be that a gender neutral right of parentage is desirable, the next component of our research will be to make a provisional design of how the reformulation of the Belgian Civil Code could be effectuated in a socially acceptable way. This will be done by means of a comparative law analysis in which we examine how countries such as the Netherlands and France may or may not constitute a source of inspiration in the light of the future possibilities of gender-neutral parentage laws.

Keywords:Family Law

Disciplines:Family law

Project type:Collaboration project