Analysing the EU Parenthood Proposal – Many Questions and Some Tentative Answers
The authors of this post are Bernadette Boehl, Sophie Dannecker, Larissa Grundmann, Maira Gabriela Nino Pedraza (all University of Bonn). A series of webinars took place in May 2023 under the title The Future of Cross-Border Parenthood in the EU – Analysing the EU Parenthood Proposal. Experts from various Member States discussed the main elements of the proposal and possibilities for improvement. The key issues addressed in each webinar are illustrated below. Those interested in the PowerPoint presentations prepared by the speakers, are invited to follow this link.
Session One
The first webinar (3 May 2023) started with a presentation by Jens Scherpe about Surrogacy in comparative perspective.
Scherpe emphasized the impossibility of avoiding surrogacy as a worldwide phenomenon, hence the global surrogacy market which affects people on an international level. He classified the jurisdictions into three categories. The jurisdictions that prohibit (e.g., France, Germany), tolerate (e.g. England), and regulate surrogacy.
For Scherpe, surrogacy tourism is a consequence of the prohibitive as well as the tolerant approach to surrogacy. Surrogacy plays an important economic role. It can be a multi-million-dollar business. This is especially true in countries whose jurisdictions follow a free market approach, such as some Canadian provinces, which could be described as “Rolls Royce” jurisdictions. This allows the intended parent to be recognised on the birth certificate from the outset. Countries that allow surrogacy in a way that the intended parents can be documented on the birth certificate beforehand but leave the process more or less unregulated tend to be attractive to a lot of people from prohibitive or tolerant countries. Those “Wild-West” jurisdictions, as Scherpe calls them, are much cheaper for future parents. But as a matter of fact, they are less protective of the surrogate and of children, and exploitation may occur. According to Scherpe, the achievement of the seemingly morally better approaches, the prohibitive and the tolerant, has the effect of exporting exploitation to those countries.
After signaling the experiences of countries like England and Denmark, the speaker concluded that both models, the prohibitive and the tolerant, have failed to prevent surrogacy by not recognising parenthood. In fact, a clear regulation is necessary and unavoidable and could solve some of the legal problems. He ends with the prediction that good regulation will not wipe out all exploitation in surrogacy matters but will, with no doubt, reduce the number of cases drastically.
Afterwards, Cristina González Beilfuss introduced the Parenthood Proposal and explained in her presentation (What’s in it? The subject matter, scope and definitions) four of the most important issues regarding the scope of the proposal.
(1) The substantive scope of the proposal is described in Article 1. “jurisdiction and applicable law for the establishment of parenthood in a Member State in cross-Border situations”. To understand parenthood is also to be seen from a sociological perspective, the definition in Article 4 can be used. Beilfuss expresses her sympathy with the term used in the Spanish draft, which is not “parentalidad” but “filiación” because it puts the child in the center of the law. Filiation should also be the preferred term in the English version, since it is a more child-centered concept than parenthood. For González, the contestation of parenthood, which is included, should have a more significant role in the proposal.
(2) Following the traditional practice of the European Commission, Article 3 defines the scope of application in a negative way. This Article confirms that the Proposal focuses on the bond of filiation but not on its consequences (Articles 3, 2. (b), (f) or (g)). Parental responsibility is not covered and should be consistently distinguished from filiation.
(3) Among the excluded matters is the existence, validity or recognition of a marriage. Marriage, however, regularly arises as a preliminary question in filiation matters. This is due to the significance of the mother´s civil status in establishing a second child-parent relationship. It would therefore be important that the Regulation included a common rule on the preliminary question in order to ensure that it is solved uniformly across the Member States.
(4) Another exclusion that is problematic is that of adoption. The English text is more correct than the French or the Spanish. Only intercountry adoptions, e.g. adoptions where the child is taken from their country of habitual residence to the country of habitual residence of those adopting are excluded, The Proposal is however wrong in assuming that all other adoptions are domestic adoptions that do not give rise to Private international questions. Whenever the child or the prospective adopters hold a foreign nationality there is a need to determine jurisdiction and the applicable law. The rules proposed are not well suited for adoption cases.
(5) The proposed rules only apply to the recognition or, as the case may be, acceptance of documents issued in a Member (see Article 3.3). Documents, in particular, birth certificates may however be issued after the recognition or acceptance of a decision or document issued in a Third State. This entails that the dividing line between Third State and European Union cases is far from clear.
In conclusion, the examination conducted by Cristina González Beifuss, as well as the questions left open, highlights the need for further discussion about the Proposal from the European Commission.
Session Two
The second webinar (10 May 2023) opened with a look at EU Primary law and a presentation by Susanne Gössl titled The EU Proposal and primary EU law: a match made in heaven?
The presentation started with an overview of the case law of the CJEU regarding the free movement of citizens (Article 21 TFEU), Article 18 TFEU (discrimination on grounds of nationality) and Article 20 (EU citizenship) in questions of status. According to that case law, a limping status constitutes an obstacle to the free movement of EU citizens and EU primary law requires the Member States to remove the obstacle.
To avoid a limping status, courts need to recognize at least parts of a status validly established in another EU Member State. The EU has two possibilities to legislate: harmonization of substantial law (as happened in Company Law) and the harmonization of private international law which is the approach the EU has taken in family law matters. The Proposal follows the second path and transforms the CJEU case law into EU secondary law.
In that reading, Article 2 of the Proposal (relationship with other provisions of Union law) seems mysterious, as EU primary law is at another level of hierarchy than EU secondary law.
One reading could be that the provision allows Member States to give more room to free movement if the national law is more generous than the proposal. Another interpretation could be that the Proposal does not understand itself as exhaustive in transforming the case law into secondary law. The latter could be the case if the scope of application does not extend to situations where EU citizens are not domiciled and therefore not registered in a Member State. They would fall under EU primary law as EU citizens but not under the proposal.
Furthermore, Gössl criticized Article 17 para. 2 (applicable law) as it contains alternative connecting factors and discretion to the court in case the main rule does not establish two parents. Discretion of the court means that EU primary law could give an obligation to recognize as father an EU citizen no matter whether this is in the best interest of the child. Finally, it remains unclear whether the conflict of laws rules of the proposal can be used in EU Member States to accept a status if they use the method of “recognition via conflict of laws”.
In Sahyouni I & II, the CJEU rejected the use of Rome III for such a national method. It would enhance the free movement of citizens if the Parenthood Proposal allowed Member States to use the Proposal for that way of acceptance. At least a clarification would be helpful.
In this order of ideas, the relationship between the draft and European private law is, for Gössl, not a match made in heaven, but at least a match.
Afterwards, Tobias Helms talked about The law governing parenthood: are you my father?.
Helms emphasized in advance that the initiative of the European Commission is to be welcomed. However, there would still be room for improvement in detail. During his presentation, Tobias Helms mainly analysed Article 17 of the Proposal.
The primary connecting factor for the establishment of parenthood is, according to para. 1, the law of the state in which the person giving birth has their habitual residence at the time of birth. As Tobias Helms pointed out, this connecting factor would be particularly friendly to surrogate motherhood. However, the connecting factor is unchangeable because it is fixed forever at the time of birth, which is problematic. Therefore, Article 17 para. 1 of the draft should be applied only with regard to the time of the child’s birth; thereafter, the child’s habitual residence should be decisive.
Also, Article 17 would have to be supplemented by establishing an Article 17a concerning the termination of parenthood. Additionally, a new Article 18a should be introduced regarding adoptions. An extra Article 22a could deal with overriding mandatory provisions.
Session Three
The third webinar (17 May 2023) started with a presentation by Alina Tryfonidou on The mutual recognition of decisions under the EU Proposal: much ado about nothing?
Tryfonidou provided an overview of the EU provisions regarding the recognition of decisions concerning parenthood. The provisions broadly follow the approach of other EU private international law regulations in the field of family law.
Article 4 of the proposal defines court and court decisions. The definitions are more abstract than those used in other EU private international law provisions in family law. Therefore, further clarification is desirable. The EU proposal is only applicable to cases with cross-border elements between member states. Decisions in third-party states are excluded from the scope of the application (Article 3(3)). Recognition of those decisions remains a question of national law. Children subject to decisions in third states are at least protected by the ECHR.
The central provision regarding the recognition of decisions is Article 24(1). It states that a court decision on parenthood given in a Member State shall be recognized in all other Member States without any special procedure being required. Article 24(3) allows the court to determine the issue where the recognition of a court decision is only raised as an incidental question.
Article 26 specifies the documents to be produced for recognition of a decision. The required attestation is supposed to enable the authority to determine whether there are grounds for refusal. The exhaustive list of such grounds is laid down in Article 31(1). The most famous ground allows the refusal if the recognition is manifestly contrary to the public policy of the Member State in which recognition is sought. The provision must be applied in observance of fundamental rights and principles laid down in the CFR. Articles 32 and 25 regulate applications for the refusal of recognition or the decision that there are no grounds for the refusal of recognition.
The next presentation was given by Maria Caterina Baruffi on Who decides on parenthood? The rules of jurisdiction.
Baruffi started by referring to the heavy criticism aimed at the proposal. Although she admitted that some of these criticisms are partly justified, she emphasized the positive aspects, namely the protection of children and fundamental rights.
The general system of jurisdiction is laid down in Article 6 of the proposal. It lists six grounds for jurisdiction alternatively. That allows for additional flexibility and facilitates access to justice.
On the other hand, a different approach may have reduced the possibility of parallel proceedings and forum shopping. Article 7 combines the presence rule with these grounds. According to recital 42, this is supposed to allow the courts to exercise jurisdiction regarding third-country national children. Article 8 states that where no court of a Member State has jurisdiction pursuant to Articles 6 or 7, jurisdiction is determined by national law. Article 9 adds the forum necessitatis rule. Articles 6 to 9 could be called exorbitant when combined. The reference to the national law of member states in Article 8 creates the additional possibility of taking recourse to exorbitant rules of jurisdiction in national law. However, the broad approach further facilitates access to justice and protects children’s fundamental rights.
Following this, Maria Caterina Baruffi briefly introduced Articles 10 and 14 which mirror the Brussels IIb Regulation, Article 15 which specifies the child’s right to be heard. She then touched on the child’s right to know its origin. This right was excluded from the proposal. Maria Caterina Baruffi argued that the Union does not have the competence to include such a right. It is not possible to predict the outcome of the proposal. It is a good starting point for a reasonable solution.
Session Four
The last webinar started with Patrick Wautelet who talked about Authentic documents and parenthood: between recognition and acceptance.
Wautelet discussed the recognition of court decisions in another Member State (Chapter IV, Section 1-2) together with the acceptance of other authentic instruments with either binding legal effect (Chapter IV, Section 3) or those with no binding legal effect (Chapter V) in the Member State of origin.
The most critical point of the proposal regarding Chapters IV and V is the distinction between the authentic instruments with binding or no binding legal effect since the question of whether an instrument has legally binding effect or not is a matter for the national law of the Member State in which the instrument was issued. It may therefore be answered differently in each Member State.
Wautelet illustrated the difficulties which this diversity may cause with an example from practice: when a child is born in France to married parents, the birth certificate drawn up must, of course, be regarded as an authentic instrument. Whether it also has a “binding legal effect” must be determined according to French family law. This question must be answered differently in France regarding maternity and paternity. However, this does not apply equally to every Member State, which means the question which category is relevant may not be answered in general for all birth certificates.
In the presentation and the following discussion, it was underlined that drawing the line between authentic instruments with binding and no binding legal effect can be complex, not least regarding other existing family arrangements (same-sex parenthood).
Furthermore, it was suggested that the terms used in the Proposal lack precision: even if an authentic act has a binding legal effect, it may be that it is not completely binding, as it may be amenable to challenge. The term ‘no legal binding effect’ suggests further that the instrument is not legally effective although it actually is. Those labels are therefore confusing and should either be reconsidered or at least explained further. His preferred choice is to not differentiate between the two categories but to merge the two.
Another topic was the acceptance of authentic instruments with no binding legal effect, as stated in Article 45 of the Proposal. There are two options for an evidentiary effect of those documents: the text may provide that the effects the original instrument has in the Member State of origin will be extended to other Member States (“same evidentiary effects”). Article 45, however, also includes another possibility, i.e. that an instrument be giventhe “most comparable effect”. Understand the evidentiary effect exiting in the state of origin requires extensive and difficult work. Patrick Wautelet proposes simplifying the Regulation with regard to the comparable effect by striking it out.
To conclude, the speaker presented four points to be considered for further reflection. Firstly, it is important to work on the language, ensuring that all terms are clearly defined. Secondly, the alternative rules for acceptance and the relationship with public policy need to be cleared. Thirdly, it is advisable to merge the two categories of authentic instruments, which should help avoid confusion or ambiguity in their application. Finally, he would like to strive for a less complex regulation – not at least to keep the users in mind.
The very last presentation, given by Ilaria Pretelli, concerned The European certificate of Parenthood: a passport for parents and children?.
The last presentation refers to Chapter VI of the proposal and the creation of a “European Certificate of Parenthood”. The certificate is supposed to make a binding presumption of the status, which results only from the certificate itself. This certificate may not make a decisive difference in numerous cases because birth certificates are widely accepted even today. But especially for cases of co-maternity, it will help with an easier recognition of co-maternity and support same-sex couples by setting a reliable framework. Additionally, this framework will be useful regarding contractual arrangements, such as surrogacy. It eliminates the risk of the child being stateless.
The similarity between the proposed “European Certificate of Parenthood” and the “European Certificate of Succession” regarding the presumption of status should not be seen as extensive as it may seem at first sight. The presumption of the status of parenthood stated by Article 53 para. 2 of the proposal differs not in the wording but in the meaning, from the presumption of status regulated by the Certificate of Succession (Article 69 para. 2). According to Ilaria Pretelli there is a huge difference in the meaning of the “presumption of status” as it is used by the proposal, because of how it can be challenged. The granted status by the proposal states a much stronger binding effect than the certificate of succession. This she concludes from seeing the explanatory memorandum, which stresses the evidentiary effects of established parenthood in another Member State. But she suggests that this matter should be clarified because of the identical and therefore misleading wording. She points to the unanswered question about the possibility of challenging the certificate by another Member State as a main problem in the proposal.
Also, Ilaria Pretelli explained the background of the numerous specifications of the certificate’s content. The purpose of those elaborate regulations is to prevent attempts of manipulation. In this respect, the rights of the child should be more in the focus of the regulations, especially the right of the child to know their origin. To do so, appropriate safeguards could be introduced by means of ad hoc rules specially designed to meet the need of pursuing the best interests of the child. In this matter, she points out that the language of the whole proposal is not focused enough on the child. She suggests to change the wording of the English version of the proposal, e.g. “filiation” instead of “parenthood”.
“Wishes” of the Organisers of the Series of Webinar
At the end of the seminar, the five organizers of the Webinars concluded the last session by expressing their “wishes” for improvement of the proposal.
These wishes were:
– Further definition of the concept of Court (Cristina Gonzalez Beilfuss);
– If the Regulation keeps the distinction between 2 types of authentic acts, that Member States and the Commission find a better way to distinguish them (Patrick Wautelet);
– Restrict the existing rule on the applicable law to designating the applicable law at the time of birth and find other rules for the time after birth (Tobias Helms);
– Introduce safeguards to prevent child-trafficking or exploitation (e.g. right of the child to know their origins or rules as those preventing illegal adoptions) (Ilaria Pretelli);
– Define the concept of “establishment” of parenthood in cases parenthood is established by the law and not by courts or authentic acts with binding effect (Susanne Gössl).
