Abstract

Belgian parentage law has historically been rooted in a traditional, heteronormative framework. While the Act of 5 May 2014 granted legal parentage rights to the female partner of a birth mother, homosexual male couples remain excluded from similar legal recognition. They must still rely on adoption or surrogacy, both of which pose significant legal uncertainties. This contribution examines whether such disparities are tenable and explores possible solutions.
Adopting a multidisciplinary approach, the contribution first provides a legal historical analysis of the evolution of parentage law for same-sex couples in Belgium. Secondly, it reviews social science research on child well-being in diverse family structures, emphasising that parenting quality and social support are more crucial than family composition. Finally, it presents a concise comparative legal analysis of Dutch law. In particular, it analyses the Dutch legislative proposal of 3 July 2023, which introduces a legal framework for surrogacy. This proposal seeks to balance the rights and interests of intended parents, the surrogate mother and the child. It particularly establishes that intended parents will be recognised as the child’s legal parents from birth and will be listed as such on the birth certificate.
The findings suggest that Belgium’s current legal framework does not provide equal protection for children of homosexual parents. The absence of clear surrogacy regulations creates inconsistencies, placing intended parents at the mercy of uncertain legal processes. Social science research affirms that children raised by homosexual parents fare just as well as those in heterosexual families, undermining arguments against legal recognition. This paper, therefore, argues for a more inclusive parentage framework in Belgium, (partially) drawing lessons from Dutch legislative developments. Establishing a well-thought-out surrogacy framework could ensure equal treatment of all children, regardless of their parents’ gender or mode of conception, thereby promoting both legal certainty and social acceptance.