It was European Diversity Month last month. An important theme was not only the recognition of formal relationships of same-sex couples within Europe, but also the recognition of different forms of parenthood within the European Union for 'rainbow families.' In her 2020 State of the Union address, Commission President Ursula von der Leyen stated that as part of the LGBTIQ equality strategy, mutual recognition of family relationships in the EU will be an important theme given its implications for the freedom of movement of persons. "If you are a parent in one country, you are a parent in every country," or so the Commission President stated. However, this catchy one-liner is still far from a reality. At the end of last year, the Commission published a proposal for a new European regulation in this area. This should contribute to a more uniform approach towards recognition of legal parentage within the EU. In this blog, some of the main features of this recent proposal will be highlighted.
Commission proposal on parenthood
The establishment of legal parentage (parenthood) concerns the recognition of a legal family relationship between a child and a (adult) person. Genetics, social reality, and the intention to become a parent may all play a role in this. Although legal parentage is regulated in different ways in each country, the recognition of legal parentage which originated abroad or when a parent has a foreign nationality is governed by private international law rules. These rules still differ from country to country. Legal parentage, however, underpins many rights and obligations, including the acquisition of nationality, residence, child support and succession which have to varying degrees already been regulated by the EU.
On December 7, 2022, the European Commission published a proposal for a new European regulation in this area. The proposal addresses the 'classic' questions of private international law, notably questions regarding international jurisdiction, the applicable law and the recognition of decisions and acceptance of authentic instruments regarding parentage. Ambitiously, the proposal also includes the introduction of a 'European declaration of parentage' for the recognition of legal parentage within the EU.
According to the Commission, a more uniform application of the rules under which parenthood is recognized and established within the EU is warranted. One reason is that there are already European regulations in place that incorporate private international law rules on the consequences of legal parenthood, such as parental authority, child maintenance obligations and inheritance law. The recognition of legal parentage as such remains, for the time being, reserved for the national legislature.
The reason for this proposal was provided by the Pancharevo judgment (C-490/20) of December 2021. A Bulgarian mother and her (female) Spanish partner had requested the Bulgarian authorities to issue a Bulgarian identity document for their daughter. The Bulgarian authorities refused to recognize the child's Spanish birth certificate however because under Bulgarian law, a birth certificate could not mention two mothers. The Court of Justice held that an obligation for a Member State to issue an identity card or a passport to a child who, according to the birth certificate of another Member State, has two mothers is not contrary to the national identity of that Member State, nor does it pose a threat to the public order of that Member State. Even so, the obligation to issue an identity card did not necessarily mean that the parenthood of persons of the same sex should be admitted in national legislation.
However, the Commission seems to want to go a step further with the current proposal. Thus, common rules have been devised for the recognition of parentage that originated in another Member State. A European declaration of parentage would enable citizens to demonstrate their parentage in a uniform manner when they move to another Member State. There can be considerable differences here as a result of different rules for the recognition of (legal) parenthood. This is especially true for same-sex parents. The Commission argues that the refusal to recognize such forms of legal parentage constitutes a serious obstacle to the free movement of persons. Such concerns in the eyes of the Commission justify the need for harmonization and uniform application of PIL rules within the EU.
The chances of the Commission's proposal being adopted as it stands would appear slight for the time being, however. Not least because all Member States will have to agree to it. A group of German legal scholars affiliated with the University of Marburg has already expressed criticism on the contents of the current proposal and its practical application. For example, the administrative burden on the civil status of the Member States could be 'excessive' if the recognition of parentage has to be tested against new European legal standards. The situation would be different for the automatic recognition of court decisions in the field of parentage within the EU, however.
In the proposal the law of the habitual residence of the birth parent (typically the birth mother) is considered to be the most important connecting factor to determine the law that applies to the determination of legal parentage. However, because the bond with that state can weaken after birth, for example in the case of surrogacy, critics believe that there is also a compelling case for relying on the law of the Member State instead where the parents concerned reside at the time parentage is established.
The current Commission proposal further includes proposals for the recognition of authentic instruments and decisions from the EU establishing parentage. Such authentic documents should be automatically recognized if they are drawn up or registered in a competent Member State, unless recognition can be refused on grounds of public policy. However, as mentioned, this is still a thing of the future. Therefore, for the time being the determination and recognition of legal parentage with a foreign element still depends on the Dutch rules of private international law.
Current situation: Dutch rules of private international law
A key distinction is made between parentage that is established in the Netherlands and outside the Netherlands. If parentage is established outside the Netherlands and laid down in a deed such as a birth certificate or in a court decision is subject to national rules regarding their recognition. This very much involves an assessment of whether proper procedural safeguards have been complied with. Factors such as public order, proper administration of justice and the authority of the authority play an important role. The starting point is that the Dutch civil servant is willing to rely on the registration of a legal fact that took place outside the Netherlands or that a deed drawn up outside the Netherlands was done correctly and in conformity with local procedures. 'Unless', i.e., for example, if the person in question disputes that the parentage question was determined correctly by the foreign authority or if the Dutch official has reasonable doubt that the foreign rules were determined correctly by the foreign authority or if the Dutch official has reasonable doubt that the foreign rules of private international law were observed correctly.
If parenthood arises within the Netherlands but one of the parents has a foreign nationality, the substantive foreign law of that non-Dutch parent should sometimes be applied by the civil registrar or court. These rules are also applied analogously if parentage was established outside the Netherlands but a deed or court decision or other written evidence is missing. As an example, the nationality of the mother, for example, will in principle determine whether or not she herself must give permission for recognition (in the Netherlands) to the non-married man who wants to become the legal father of the child. Under French law, for example, such consent is not required.
Different private international law rules: caught between a rock and a hard place?
In principle, the 'conflict of law' test in Dutch private international law is more 'intense'. If parenthood originates in the Netherlands and a non-Dutch parent is involved, then that person's own national law may have to be applied by the civil registrar or court. By analogy, these rules are also applied when the parentage relationship originated abroad, but there is no birth certificate or court decision to show this. This occurs, for example, in countries such as Ghana. The rules for the determination of the applicable law Dutch in Dutch private international law are quite complex. Someone's nationality remains an important factor.
Differences in approach to the establishment of legal parentage in national legal systems can also lead to a 'short circuit' when such differences in legal systems clash. For example, in a recent Dutch Supreme Court case the Polish mother did not want the man to become the legal father and withheld her consent. The man in question could, according to the applicable Polish law, not turn to the court for consent. Conversely, the father could not have his paternity established by the court either at his own request; only the mother or child may do so under Dutch law. Under Polish law, the latter option would have been viable. 'So, the man is caught between, on the one hand, the Polish law that applies to the woman's consent, which the court cannot replace with its judicial consent, whereas Dutch law does not allow him to ask for a judicial determination of paternity either.'
Unlike the Court of Appeal, the Dutch Supreme Court did not really consider the Polish legal solution for this problem to be in conflict with the Dutch public order, but held that rigorous application of Polish law would be irreconcilable with Article 8 of the ECHR (right to family life). Moreover, the application of Dutch law was justifiable because the parties had their habitual residence in the Netherlands. Thus, by attaching greater weight to the ties of the persons with the Netherlands as the country of their habitual residence, the court's reasoning seems to be more in line with the recent Commission's proposals.
Final remarks
The Commission's new proposal on a Parenthood Directive indicates a shift towards the application of the law where the child and parents actually live and towards mutual recognition of legal parentage within the EU. The legislative process is still in its infancy and will undoubtedly incite and require further debates and refinement. In the meantime, the PIL rules of individual EU Member States continue to provide solutions for questions about parentage and its recognition within the EU.
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