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Regulation on the recognition of parenthood between Member States

In “A New Push for European Democracy”

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Parenthood, also known as legal parentage, is the civil status governing the legal family relationship between a child and another person. While the establishment of parenthood is governed by the national family law, the recognition of the parenthood already established abroad is usually dealt with in the private international law (conflict of laws) rules. This status is the basis for many rights, i.a. acquisition of nationality, residence, maintenance and succession.

The refusal to recognise the parenthood can, among others, render a child stateless, lead to the refusal to the parent to grant permission for a medical procedure for the child in a hospital or to register the child in a school, or also separate children of one of their parents in cases of child abduction, where the Member State where the child is taken to does not recognise the parenthood ties to the parent requesting the child's return. Thus, the refusal by a state to recognise the parenthood established abroad can have sever consequences for children and their families.

In the State of the Union 2020, Commission President Ursula von der Leyen stated: 'As part of [the LGBTIQ Equality Strategy], I will also push for mutual recognition of family relations in the EU. If you are parent in one country, you are parent in every country.'

Whilst substantive law on parenthood is within the remit of Member States’ law, the Union can adopt measures concerning family law with cross-border implications pursuant to Article 81(3) TFEU. On 14 April 2021, the European Commission published an Inception Impact Assessment on a Regulation on the recognition of parenthood between Member States and held a public consultation from 19 May until 25 August 2021. The European Commission established an expert group to assist it in the preparation of legislative proposals and policy initiatives.

On an international level, a similar initiative is being prepared. The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has done research between 2010 and 2015 specifically on the issues arising to the recognition of parenthood, with a focus on issues of the recognition of parenthood arising from international surrogacy arrangements. On the basis of this an expert group was set up which has been meeting twice a year since 2016. This expert group considers a possible international instrument concerning the recognition of parenthood, with an additional protocol concerning international surrogacy arrangements. The final report from this expert group is expected to be presented to the Council on General Affairs and Policy of the HCCH in 2023.

In the case C-490/20 V.M.A. v Stolichna obshtina, rayon „Pancharevo“, the Court ruled on 14 December 2021, that in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates as that child’s parents two persons of the same sex, the Member State of which that child is a national is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.

As part of the Equality Package, the Commission, on 7 December 2022, adopted the proposal for a Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood. 

It is proposed that as a rule, the law applicable to the establishment of parenthood should be the law of the Member State where the person giving birth has their habitual residence (or otherwise the country of birth of the child). Where that rule results in the establishment of parenthood for only one parent, alternative options ensure that parenthood can be established for both parents. The rules have universal application, thus allowing the competent authorities to apply the law of a third country. Court decisions and authentic instruments establishing parenthood with binding legal effect issued in a Member State should be recognised in another Member State without the need for any special procedure

The European Parliament adopted its non-binding position on 14 December 2023.

The report prepared by the Legal Affairs (JURI) committee, with opinions from the Civil Liberties, Justice and Home Affairs (LIBE) and Women's Rights and Gender Equality (FEMM) Committees, welcomed the proposal and suggests several amendments. When a court or other authority of a Member State has relied on the public policy exception to refuse recognition of parenthood established in another Member State, such parenthood established 
abroad will still be presumed to have been recognised for as long as an appeal against the public order decision is pending with the judicial authorities, including the Court of Justice of the EU if a preliminary reference is made. Thus, only once a decision by the courts in Member State A rejecting parenthood established in Member State B on account of public policy becomes final, without the possibility of any further appeal, will parenthood existing under the laws of Member State B cease to be legally recognised in Member State A. Furthermore, the report calls on the Commission to develop guidelines prior to the entry into force of the regulation.

References

Author: David de Groot, Members' Research Service, legislative-train@europarl.europa.eu

As of 20/05/2024.