Slovakia’s Constitutional Reforms, PIL and Beyond

Marco Pasqua (MP): In September 2025, Slovakia adopted Constitutional Law No. 255/2025, amending the Constitution of the Slovak Republic No. 460/1992 in its Articles 7, 15, 41 and introducing Article 52a. These amendments define parenthood strictly as the relationship involving a mother (woman) and a father (man), prohibit surrogacy, restrict adoption to married couples and exceptional single cases, and recognize only biologically determined sexes.

How should private international law conceptualise constitutional amendments of this kind? Do they primarily affect domestic family law, or do they reshape the conditions under which foreign family statuses are recognised?

Lilla Garayová (LG): From a private international law perspective, the amendment is not really about changing domestic family law in Slovakia and more about changing the filters through which Slovak authorities will read foreign family status. This could impact foreign birth certificates, foreign court decisions, foreign adoptions, and foreign civil‑status registrations. In practice, the constitutional definitions (parenthood as mother + father, a ban on surrogacy, restrictive adoption rules, and recognition of only biologically determined sexes) will likely become a stronger constitutionalised public policy baseline against which cross-border family situations are tested. That matters because, across the EU, most cross‑border parenthood problems do not arise from conflict rules in the abstract, but from recognition.

First, the constitutional definition of parenthood as exclusively mother and father introduces a potential public policy obstacle in recognition proceedings. Slovak courts may now be constitutionally obliged to refuse to recognize foreign decisions or civil status records that establish same-sex parenthood.

Second, the constitutional ban on surrogacy reinforces the public policy exception in cases of children born abroad under legal surrogacy agreements. Until now, Slovak law has operated in a gray area. In practice, this increases the likelihood of foreign decisions on parenthood not being recognized. From the child’s point of view this raises concerns such as statelessness, lack of legal parenthood, and obstacles to inheritance, maintenance, or nationality.

Third, binary gender recognition has implications for civil status registration and the recognition of foreign documents. Private international law is deeply dependent on mutual trust in civil status records.

These amendments express a conservative domestic vision of the family. But for private international law, the key question will not be whether Slovakia can conservatively define its internal model of the family. It will be whether it can do so while ensuring that children and families formed abroad are not left in a legal vacuum.

MP: From a broader EU perspective, in Poland, Hungary and Romania national legislation or administrative practices have created obstacles to the recognition of cross-border parenthood. These cases highlight limits in and challenges for private international law.

Do these developments reveal limits in the current architecture of recognition in the Union? Where, concretely, do you see the system struggling most?

LG: I think the main problem is not ideological disagreement, but fragmentation. Private international law assumes that personal status is transferable. In practice, however, parenthood often ends at the border. A child may legally have two parents in Spain or Belgium, but only one in Poland or Romania. The result is what we call limping parenthood – a family that exists fully in one jurisdiction and only partially in another.

One practical challenge is documentation. If a registry office refuses to transcribe a foreign birth certificate listing two mothers or two fathers, the consequences are immediate. No ID card. No passport. No clear proof of parental authority. What starts as a technical administrative refusal quickly becomes a mobility issue under EU law.

Another challenge is legal uncertainty. Families often do not know in advance whether recognition will be granted, partially granted, or refused. Much depends on how broadly national authorities interpret public policy. This unpredictability discourages free movement.

And most importantly – the potential impact on the rights of children. Judicial authorities at the European level insist on functional recognition more and more, at least for the purposes of free movement and identity. However, domestic systems sometimes still perceive recognition as symbolic approval of a family model rather than as a protective measure for the child.

MP: On 21 November 2025, the European Commission opened an infringement procedure under Article 258 TFEU against Slovakia (INFR(2025)2208) following constitutional amendments granting Slovak authorities, including courts, the power to assess whether and to what extent EU law applies in Slovakia, including rulings of the Court of Justice. The Commission’s procedure raises questions regarding the interaction between national constitutional rules and EU law.

How do you see these developments affecting the practical application of EU law and private international law in Slovakia?

LG: Yes, Article 7 of the constitution has been amended to allow Slovak authorities to assess the scope of application of EU law in the Slovak Republic, and in “matters of national identity,” the constitution and domestic laws take precedence over international law. Slovakia has attempted to define the red lines of its sovereignty through a constitutional amendment, particularly in cultural and ethical issues such as family, marriage, parenthood, and gender identity. Similar to Hungary and Poland in the past, Slovakia is signaling that it claims the final say in these areas, regardless of EU law. Judges in private international law cases, particularly those involving cross-border families, may feel encouraged to assess EU obligations through the prism of constitutional identity. This leads to hesitation. And hesitation in private international law means delays in recognition, delays in issuing documents, delays in protecting children. Private international law depends on predictability. Families moving across borders need to know whether a birth certificate, a parental status, or a court decision will be recognized. When constitutional identity enters that equation as a variable, uncertainty increases.

MP: The proposal for a regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood, which also introduces the European Certificate of Parenthood, aims to ensure legal certainty and recognition of cross-border family ties. If adopted, however, it may clash with national constitutional rules, such as Slovakia’s definitions of parenthood and gender, raising questions on how authorities can reconcile domestic mandates with EU law.

How much flexibility will courts retain in recognising status acquired abroad?

LG: The proposed regulation is designed to reduce the fragmentation we have discussed. The logic behind it is very simple: if parenthood is validly established in one Member State, it should be valid throughout the Union. The European Certificate of Parenthood would serve as a uniform document of status. Having worked as the Slovak national expert in the European Commission’s impact assessment study on this initiative, I can say that one of the main findings was the remarkable degree of legal uncertainty that families face today. In several Member States, including more conservative ones, children risk “losing” a parent at the border. The proposal aims to prevent this.

So how much flexibility would Slovak courts retain? Formally, some room would remain. The proposal preserves a public policy exception, albeit narrowly defined. Courts would still be able to invoke it in exceptional cases. Under existing Union law, the space for refusal is limited. A Member State cannot invoke national identity under Article 4(2) TEU or rely on public policy to refuse recognition of a parent-child relationship between a child and their same-sex parents where such recognition is necessary for the child to exercise rights granted by Union law. In other words, constitutional identity does not override a child’s rights.

MP: These developments raise concerns for human and fundamental rights, including private and family life, non-discrimination and the best interests of the child.

How might national reforms, like those in Slovakia, be reconciled with the protection of fundamental rights in cross-border family situations?

LG: The key is to distinguish between defining the domestic model of the family and protecting the status of cross-border families.

States have the right to shape their domestic family law in accordance with their constitutional traditions. This is part of pluralism in Europe. Slovakia, for example, has decided to enshrine a more conservative understanding of parenthood and gender equality in its constitution. This is a political and cultural decision. However, when we look at the cross-border implications, the real question is not the symbolic definition of the family. It is the way the system treats a child who arrives at the border with a birth certificate issued elsewhere. Harmonization in family matters begins with a child-centered perspective. The best interests of the child can not remain an abstract slogan.  Even if the state does not recognize certain forms of family in its domestic law, it must avoid creating a legal vacuum in cross-border situations. Recognition for specific purposes, such as documents, right of residence, inheritance, or parental authority, can ensure protection without the state having to rethink its entire substantive law.

MP: Before we conclude, is there anything else you would like to add?

LG: What we are seeing here is not just a matter of constitutional law, but clearly has an immense impact on private international law. Private international law was never meant to harmonise values. Its function is more modest and, in a way, more humane. It ensures continuity of personal status and protects acquired rights across borders. If this function is weakened, the consequences could be children who cannot obtain documents, parents who cannot make medical decisions, or families who are suddenly legally incomplete. Each Member State is entitled to shape its own constitutional identity, but no constitutional identity should be constructed in a way that leaves a child without legal security. The strength of any constitution is measured by how firmly it protects its values, but also by how carefully it protects the most vulnerable when those values are tested in cross-border reality.

MP: Thank you for this insightful exchange.