In Estonia, the married person who is a stay-home parent and raising a child generally has the health insurance covered by state but the state refused to give the health insurance to Jelena, a member of a family of same-sex partners and their son in June. The couple turned to court with the support of the Estonian Human Rights Centre and the Law bureau Sirel & Partners. In September, the court decided that the state’s action was in conflict with the Constitution.
On 6 September, Tallinn’s Administrative Court decided to claim the § 6 lg 1 article 8 to be in conflict with the Constitution. The Court found that the same-sex partners and parents who have registered their partnership legally should be treated equally with the parents who are married.
The win regarded Marina and Jelena who have shared their lives as a couple for over 10 years. During that time, Jelena gave birth to a son who, as of today, is 3 years old. In 2016, they registered their partnership and Marina adopted Jelena’s son whom they had planned, eagerly waited and raised together. As the result of the adoption, both Marina and Jelena were marked as parent on his birth certificate. After the birth and adoption, Marina took out her maternity leave but she has returned to work and at this moment Jelena has stayed home with their son. The state declined giving health care to Jelena, justifying it saying that the registered partnership that would give such right to the same-sex partner and parent has not practically implemented yet. After that, the couple turned to our Centre and the lawyers Kalle-Kaspar Sepper and Tõnis Loorits agreed to help us.
‘Another win at the court clearly demonstrates the need to finally practically implement the registered partnership act to put an end to the pointless suffering and financial expenses of the same-sex partners and their families. In a state where human rights are honoured, it is important to guarantee equal rights and possibilities to all families, without going to court to ensure that,’ commented Kelly Grossthal, Expert of Strategic Litigation of the Estonian Human Rights Centre.
The Court explained in its decision that a decline for the legislator to treat persons differently, i.e to imply and to preserve norms that result in different results for people in similar situations is derived from the § 12 of the Constitution. The Court found that in Marina and Jelena’s case there is no reason to treat the parent – who has the health care and is raising her child – and her registered same-sex partner – who is also raising the child – differently. In addition, the Court stated that marriage does not differ from the registered partnership in the context of mutual obligation to provide maintenance. The Court also reminded how these measures have been implemented to able the best possible environment and conditions to children.
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