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Doc. 7885
16 July 1997
Discrimination between women and men in the choice of a surname and the passing on of parents' surnames to children
Report
Committee on Legal Affairs and Human Rights
Rapporteurs: Ms Lydie Err, Luxembourg, Socialist Group and Mr Jean-Louis Masson, France, European Democratic Group)
Summary
The report considers the discrimination that persists in some member states between men and women in the choice of surnames and the passing on of parents' surnames to children. As far back as 1978, the Committee of Ministers of the Council of Europe adopted a resolution calling for the elimination of all discrimination between the sexes. Since then, resolutions to the same effect have been adopted in various international forums, including the United Nations. While many European countries have brought their legislation into line with these moves to eliminate discrimination, several countries have, unfortunately, resisted all change, as was indicated in a previous report (Doc. 7259 of 3 March 1995).
In 1995, the Parliamentary Assembly of the Council of Europe adopted a recommendation on the matter. However, the action taken in response by the Committee of Ministers was confined to forwarding the text to Council of Europe member states without asking them to reply or to give a commitment to comply with the recommendation by a specific deadline. It is therefore proposed that the Assembly recommend that the Committee of Ministers adopt a more proactive stance.
However, it must be made clear that the aim is to eliminate any sexist discrimination in the rules governing names. There is absolutely no intention of seeking to apply uniform rules in all countries. The rules in force in this area vary greatly from one member state to the next, depending on local traditions. In cases where there is no discrimination, it would be wrong to undermine these traditions.
I. Draft recommendation
1. The Assembly recalls Recommendation 1271 (1995), which condemns the maintenance by certain states of discrimination between men and women in the choice of a surname and the passing on of parents' surnames to children.
2. In its reply to thIS recommendation, the Committee of Ministers accepts that each country has its own legal system in this area, depending on "local customs and traditions", but stresses that these legal systems should not include any discriminatory provisions. In conclusion, however, the Committee of Ministers merely states that: "the maintenance of provisions discriminating between women and men with regard to the choice of a family name is not compatible with the principle of equality upheld by the Council of Europe. It is with this in mind that Parliamentary Assembly Recommendation 1271 (1995) has been transmitted to the governments of the Council of Europe member states".
3. The Assembly is therefore pleased to note the position clearly stated by the Committee of Ministers. It nevertheless takes the view that action must be taken on the basis of this position: it is not enough for the Committee of Ministers merely to transmit the recommendation to Council of Europe member states.
4. Notwithstanding the time which has passed, especially since the adoption of the resolution of the Committee of Ministers of the Council of Europe on equality of spouses in civil law on 27 September 1978 and of the United Nations Convention on the Elimination of All Forms of Discrimination against Women on 18 December 1979, some states have not even begun to move towards change in this area.
5. The Assembly therefore recommends that the Committee of Ministers ask each member state to advise it of the period within which it undertakes to comply with the principles of non-discrimination referred to above.
6. As in Recommendation 1271 (1995), the Assembly also recommends that the Committee of Ministers of the Council of Europe identify those member states which retain sexist discrimination and ask them to take appropriate measures:
i. to implement strict equality between mother and father in the passing on of a surname to their children;
ii. to ensure strict equality in the event of marriage with regard to the choice of a common surname for both marriage partners;
iii. to eliminate all discrimination in the legal system for conferring a surname between children born in and out of wedlock.
II. Explanatory memorandum by Ms Err and Mr Masson
1. On 14 May 1993, Mr Jean-Louis Masson presented a motion for a recommendation on equality between women and men in the choice of a child's surname to the Parliamentary Assembly of the Council of Europe 1. The text was referred for report to the Committee on Legal Affairs and Human Rights 2. On 12 December 1994, the Committee on Legal Affairs and Human Rights then adopted a draft recommendation based on a report by Ms Err and Mr Masson 3.
2. Finally, on 28 April 1995, the Parliamentary Assembly adopted the recommendation by a qualified majority 4. The Committee of Ministers then replied on 3 April 1996 5, endorsing the conclusions of the recommendation in principle. However, it subsequently confined itself to forwarding the recommendation to the member states without asking them to indicate the deadline by which they planned to eliminate any discrimination or even whether they at least intended doing so.
3. Yet, as far back as 1978, the Committee of Ministers of the Council of Europe adopted a very explicit resolution 6 recommending, among other things, that member states eliminate any gender discrimination in the passing on of surnames. In 1997, almost twenty years later, it has to be said that certain states have not changed their legislation. The reply by the Committee of Ministers on 3 April 1996 is therefore totally inadequate, as it goes no further than the 1978 resolution. If we content ourselves with this reply, the states concerned will still not have eliminated the discrimination in question twenty years from now.
4. On 2 December 1996, Mr Masson therefore presented a new motion for a recommendation 7 whose purpose was to urge the Committee of Ministers to ask each member state to advise it of the period within which it undertook to comply with the principles of non-discrimination in the choice of a surname and the passing on of parents' surnames to children.
A. Discriminatory systems: an anachronism
5. The question of the choice of a surname and the passing on of parents' surnames to children deserves our attention, as the rules applied in certain countries still entail discrimination between women and men. Depending on the individual country involved, the problem of discrimination concerns either the common surname used by spouses or the passing on of surnames to children or, indeed, both. Old customs mostly gave preference to the man's surname and, in those cases where they have persisted, they are now out of step with the moves in our societies towards greater equality between women and men.
6. At the same time, the rules applied in this area vary greatly from one member state to the next, depending on local traditions. While any discriminatory provisions in these rules must be eliminated, there should be no attempt to apply a uniform system. Indeed, the maintenance of differences between individual countries can be seen as a cultural asset and a source of diversity among civilisations.
7. A name is an integral part of an individual's personality. It identifies the individual in relation to his or her family and other people. For this reason, the majority of European countries have legislation imposing great stability in surnames and forenames and only allow for changes of name in a very limited number of cases. The legal rules governing the passing on of surnames to children are indicative of the social system of a given society and, among other things, reflect the position of women and men in that society.
8. As well as being unacceptable in terms of the actual principle involved, discriminatory rules on surnames present several disadvantages: they speed up the depletion of the anthroponymic heritage, and they may also cause the disappearance of some famous names or, on the contrary, impose the use of embarrassing names or names which make integration into a national community all the more difficult. Conversely, the arguments put forward by those who are in favour of sexist criteria for passing on surnames are not very convincing. Lastly, there is the fundamental problem of the compatibility of this form of discrimination with current thinking regarding the application of the European Convention on Human Rights.
9. Legislation on surnames warrants particular attention as far as gender equality is concerned. Of course, it is not a matter which has drastic material consequences. Its interest lies rather in the symbolic value of names, as they are the most direct means of identifying individuals and are thus of immediate concern to them.
10. The discrimination that still exists in some legislation on surnames is, in fact, a legacy of an era when society was based on fundamentally unequal relations between men and women. Today, things have changed completely and it would therefore seem appropriate for the rules governing surnames to be brought into line with the generally recognised principles of equality.
11. Moreover, the problem of the rules governing surnames concerns a wider area than merely the passing on of surnames to children. It also involves discrimination in this respect between children born in and out of wedlock, as well as the question of the common surname used by married partners.
12. Of course, genuine equality between women and men in the choice of surnames can be achieved only if care is taken not to create difficulties in other areas. Otherwise, the supporters of the status quo - who are to be found in large numbers in some countries - would be bound to block any progress. Nevertheless, the example of several countries (such as Germany and Portugal) where strict equality has been introduced demonstrates that entirely satisfactory solutions do indeed exist.
B. The need for states to clarify their positions
13. The resolution adopted in 1978 by the Committee of Ministers and most of the subsequent texts had the disadvantage of not requiring member states to make their positions clear. To maintain the status quo, all they needed to do was to keep quiet and not state their positions. In contrast, the aim of Recommendation 1271 (1995) was to bring about clarity in this area. Unfortunately, however, the reply subsequently given by the Committee of Ministers is clearly dilatory in nature, as it makes no reference to asking states about their objectives, let alone the period within which they intend abolishing discriminatory legislation.
14. Of course, the reply by the Committee of Ministers is entirely satisfactory from the theoretical point of view and also officially endorses the principle of non-discrimination. However, it does not alter the situation in any way and will not lead to any progress. Member states are not required to give any replies, explanations or undertakings, and can thus maintain the silence they have kept up for over twenty years.
15. A new recommendation has therefore been prepared for presentation to the Assembly. It reiterates the principles of non-discrimination between the sexes in the choice of surnames which have been laid down since 1978 by the Committee of Ministers, the UN and many other international bodies. However, in addition to this declaration of principle which is now almost universally accepted, the recommendation has the fundamental objective of encouraging states to set out their positions and give a clear indication of their intentions.
Appendix
RECOMMENDATION 1271 (1995) 8
on discrimination between men and women
in the choice of a surname and in the passing on of parents’ surnames to children
1. The Assembly recalls that a name is an element which determines the identity of individuals and that, for this reason, the choice of name is a matter of considerable importance. Continued discrimination between men and women in this area is therefore unacceptable.
2. Many countries have introduced legislative reforms in recent decades with the aim of gradually achieving equality between the sexes in respect of the legal system governing surnames. Other countries have, however, retained the traditional legal systems based on criteria which are often doubly discriminatory: discriminatory between mother and father and discriminatory in terms of whether the child is born in or out of wedlock. Accordingly, a determined effort needs to be made to ensure that the legislation of all Council of Europe member states is quickly brought into line with the major principles of equality.
3. The Assembly points out that the Committee of Ministers of the Council of Europe adopted a very explicit resolution in 1978 (Resolution (78) 37), which recommended, inter alia, that member states should eliminate all discrimination between men and women in the legal system governing surnames. It further points out that many Council of Europe member states have ratified the United Nations convention of 18 December 1979, Article 16 of which stipulates that all signatory states should take the necessary measures to eliminate all sexist provisions in respect of the right to choose a family name.
4. The Assembly is therefore surprised that no follow-up action has been taken by some Council of Europe member states on the Committee of Ministers’ 1978 resolution. It is also surprised that those member states which are signatories to the international convention initiated by the United Nations in 1979 have not fulfilled their commitments.
5. Consequently, the Assembly recommends that the Committee of Ministers of the Council of Europe identify those member states which retain sexist discrimination and ask them to take the appropriate measures to:
i. implement strict equality between mother and father in the passing on of a surname to their children;
ii. ensure strict equality in the event of marriage with regard to the choice of a common surname for both marriage partners;
iii. eliminate all discrimination in the legal system for conferring a surname between children born in and out of wedlock.
6. The Assembly also recommends that the Committee of Ministers ask each member state which is a signatory to the 1979 United Nations convention and which has not brought its legislation into line to specify whether it plans to do so, and if so, when and how.
Reporting committee: Committee on Legal Affairs and Human Rights
Budgetary implications for the Assembly: none
Reference to committee: Doc. 7709 and Reference No. 2149 of 27 January 1997
Draft recommendation adopted unanimously by the committee on 24 June 1997
Members of the committee: Mr Hagĺrd (Chairperson), MM Schwimmer, Bindig (Vice-Chairpersons), Mrs Aguiar, MM Akçali, Alexander, Aushev, Bartumeu Cassany, Berti, Besostri, Clerfayt, Columberg, Contestabile, Deasy (alternate: Connolly), Dees, De Marco (alternate: Sceberras Trigona), Demetriou, Deniau, Mrs Err, Mr Fogaš, Mrs Frimansdóttir, MM Frunda, Fuhrmann, Fyodorov, Mrs Gelderblom-Lankhout, Mrs Holand, Mr Hunault (alternate: Masson), Ms Jäätteenmäki, MM Jaskiernia, Jeambrun, Kelam, Lord Kirkhill, Kostytsky, Kova_evi_, Loutfi, Mrs Lundholt, MM. Magnusson, Martins, Mészáros, Micheloyiannis, Mosetic, Nastase, Németh, Oleksy, Pantelejevs, Sir Irvine Patnick, Pavlov, Mrs Plechatá, MM. Pollo, Polydoras, Poppe, Rhinow, Robles Fraga (alternate: Lopez Henares), Rodeghiero (alternate: Speroni), Solé Tura, Solonari, Sta_iokas, Sungur, Symonenko, Tahiri, Vishnyakov, Vyvadil, Weyts, Wittmann, Mrs Wohlwend.
N.B. The names of those members who took part in the vote are printed in italics.
Secretaries to the committee: Mr Plate, Ms Coin, Ms Kleinsorge and Ms Clamer
1 . Doc. 6839.
2 . Reference to committee No. 1897 of 1 October 1993.
3 . See doc. 7259 of 3 March 1995.
4 . Recommendation 1271 (1995): see appendix.
5 . Doc. 7521 of 12 April 1996.
6 . Resolution (78) 37.
7 . Doc. 7709.
8 . Assembly debate on 28 April 1995 (16th Sitting) (see Doc. 7259, report of the Committee on Legal Affairs and Human Rights, rapporteurs: Mrs Err and Mr Masson).
Text adopted by the Assembly on 28 April 1995 (16th Sitting).