The thesis is now available online and here is the abstract:
This study is a sociological analysis of the establishment and recognition of family relations in the case law of the European Court of Human Rights. How are close personal relations between adult couples and children and their parents recognised in the case law of the European Convention on Human Rights (ECHR)? What kinds of combinations of biological, legal, social and gendered personal relations are regarded as family life in legal disputes between individual applicants and Member States of the Council of Europe? Following Nicola Lacey, the analysis develops a notion of relational subjects framed by perspectives from feminist legal theory, relational sociology and contemporary debates on the law and politics of family formation. It also offers a sociological reading of relevant ECHR case law. Relevant judgements from 1979-2014 act as primary data, supported by relevant inadmissibility decisions and reports from 1960 onwards (90 cases in total).
In the data, a historical shift from emphasising status (married/unmarried, male/female) towards identity (sexual orientation, gender identity, genetic origins, genealogy) in recent case law may be identified. The notion of individual rights holders is examined from a relational perspective inspired by sociological and anthropological theory and gender studies in law, emphasising the importance of life-sustaining relations of care and dependency in the spirit of feminist relational (legal and political) theory that do not always follow preconceived structures of kinship recognition. Furthermore, it is enquired whether relations between legal subjects are more fruitfully viewed as transactional or transcendental from the point of view of two differing academic schools in the field of relational sociology, one among many other general theories on the constitution of society.
It is argued that a process of divergence between alliance (marriage, civil unions, cohabitation) and filiation (legally recognised parent-child relations) has been intensified with the emergence of same-sex marriage and civil unions in the European legal arena in recent years. Politically and legally, alliance is simpler to transform into a gender-neutral legal relation than filiation. Both gender and physical sex, as social and biologico-legal dimensions of the dichotomy of masculine/feminine, provide critical perspectives to the establishment of relations of filiation. It is argued that from a human rights perspective, a gender-sensitive approach is required in relation to questions of corporeal maternity and paternity, as complex issues such as access to knowledge of one's genetic origins and the inalienability of the human body in processes of assisted reproduction crop up in many contexts of which ECHR case law is just one arena.