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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.

While refusals for the recognition of parenthood are especially acute to rainbow families, as described in the study 'Obstacles to the Free Movement of Rainbow Families in the EU' requested by the European Parliament's Committee on Petitions, and to international surrogacy arrangements for which there has been much case law at the European Court of Human Rights, these types of situations happen to families in general due to differences in the rules on the basis of which parenthood is established.

In the 2010 Green Paper 'Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records', among others, both the option for automatic recognition of civil status events and the recognition based on the harmonisation of conflict-of-law rules were offered. Regulation 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union did not follow either of these options, requiring recognition of the documents themselves, but not their content.

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.

In its resolution on LGBTIQ rights in the EU of 14 September 2021, the European Parliament called on the Commission to propose legislation requiring all Member States to recognise, for the purposes of national law, the adults mentioned on a birth certificate issued in another Member State as the legal parents of the child, regardless of the legal sex or the marital status of the adults.

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. The proposal was accompanied by an impact assessment and subsidiarity grid.

The rapporteur for the JURI (lead) committee, Maria-Manuel Leitão-Marques (S&D, Portugal), presented her draft report on 15 June 2023, proposing 53 amendments. A further 593 amendments were tabled in committee.

The LIBE Committee, which is related to the file on the basis of Rule 56+, adopted its opinion 9 October 2023.

The FEMM Committee, which is related to the file on the basis of Rule 56, adopted its opinion on 19 September 2023.

References

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

As of 20/02/2024.