While the Pride Week has started in Brussels and will lead-up to the Belgian Pride Parade on Sunday 20 May, the discussion about the European Commission’s proposal on a new Council regulation on the recognition of parenthood has hardly started.
The Commission proposed last December a Council regulation on the recognition of parenthood between EU member states to ensure that the parenthood established in one EU member state is recognized in all other member states in order to protect children’s rights in cross-border situations and to facilitate family travel in the EU.
The proposal includes the creation of a European Certificate of Parenthood and covers the recognition of the parenthood of all children irrespective of how they were conceived or born (e.g., by surrogacy) and irrespective of their type of family (e.g., same-sex parents), and irrespective of the nationality of the child and of its parents.
According to the proposal, an estimated 2 million children may currently face difficulties in having their parenthood recognised in another member state for all purposes, including when they move to another member state or return to their member state of origin. Currently, no member state allows surrogacy and some of them do not recognize same-sex civilian partnership, marriage and parenthood.
The proposed recognition is explicitly limited to EU member states. Recognition of parenthood established in a non-EU country will not be recognized and will remain governed by the national law of each member state.
The use of the certificate would be optional for children and their families and would not replace equivalent national documents providing evidence of parenthood (such as a birth certificate).
“One of the most important elements of the proposal is the introduction of an optional – binding – European Certificate of Parenthood,” law professor Alina Tryfonidou writes in a recent study commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the Committee on Petitions.
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The rationale behind the introduction of the certificate is explained in the proposal. “In order for the recognition of the parenthood established in a Member State to be settled speedily, smoothly and efficiently, children or their parent(s) should be able to demonstrate easily the children’s status in another Member State.”
Legal certainty and predictability will therefore be further enhanced through the introduction of the European Certificate of Parenthood. The proposed instrument will solve many of the problems and difficulties identified in her study.
A Commission spokesperson underlined that family law is a national competency. “The proposal deals with EU law and cannot oblige EU member states to accept decisions by non-EU countries.” It would be up to the member states to conclude bilateral agreements with third countries. Alternatively, the EU would have to negotiate an international agreement with a specific third country.
However, the proposal refers to a ruling by the European Court of Fundamental Rights (ECtHR). Its case law already requires states within its jurisdiction to recognise the parenthood established abroad between a child born out of surrogacy and the biological parent, and to provide for a mechanism for the recognition of the parenthood between that child and the non-biological parent (Mennesson v. France, 2014, and subsequent case law).
“All EU member states are signatories to the ECHR and, thus, they are bound by the case-law of the ECtHR,” professor Tryfonidou told The Brussels Times. “In situations where there is a surrogate-born child whose parenthood was established in a third-country (and, thus, the parenthood regulation will not apply), the case-law of the ECtHR will, subject to certain conditions laid down in that case-law.”
But it is far from certain that the proposal in its current version will be approved as it is going to be adopted in a special legislative procedure without trilogue negotiations between the European institutions. Instead, it must be adopted unanimously by the Council after consultation with the Parliament. Hungary and Poland have already announced that they oppose the proposal.
For the time being the Council is analysing the Commission’s proposal but the legislation is put on hold and any decision is not expected during the Swedish EU Presidency.
M. Apelblat
The Brussels Times
