The cross-border legal recognition of parenthood under European law: current law and future prospects

ABSTRACT

Historically, the issue of who were a child’s parents was in most instances settled as it was considered that the nuclear family was the (only) valid family formation and, as such, should be the (only) family configuration that should be protected and recognised under the law. Thus, traditionally there was an overall uniformity in the laws of different European States regarding parenthood-related issues. Although some European States continue to maintain a dividing line between nuclear and alternative families by offering legal recognition and protection only to the former, in other European States the law increasingly gives legal recognition and protection to parenthood in situations where the family does not fit within the nuclear family model. This diversity in the legal regulation of parenthood has given rise to the problem of non-recognition of parenthood: in some instances, parenthood validly established under the laws of one State is not recognised in some other States. The article considers the ways in which European law has responded to this problem to date and concludes that currently there is no comprehensive solution to it. Although recent years have seen a surge in efforts to find such a solution, the chances of this materialising appear grim.

KEYWORDS:

• Family law
• EU law
• ECHR
• alternative families
• establishment of parenthood
• cross-border recognition of parenthood

Introduction

The nuclear family model has formed the basis for the regulation of family relationships in Europe and beyond (Nielson 2017). Under this model, a family consists of a different-sex married couple and their genetically linked child(ren) (Golombok 2015, p. 1), and parents are believed to have a right to rear the children that they brought into the world (Gheaus 2018). Hence, as a general rule, family laws attribute (legal) parenthood to the persons who appear to be the genetic parents of the child and, thus, legal parenthood coincides, in most instances, with genetic parenthood. I use the word ‘appear’ (rather than ‘are’), since a number of rebuttable presumptions generally apply in national family laws in order to attribute legal parenthood to persons who are presumed to be genetically related to a child (such as the husband of the woman who gave birth to a child), without requiring actual proof of those genetic links.

Legal parenthood is a civil status which is central to a person’s identity and from which many important rights and obligations are derived. Although in recent years there has been increased visibility of, so-called, ‘alternative families’ (Golombok 2015), the heteronormative nuclear family paradigm is still prevalent in Europe, at national and supranational level (Tryfonidou, forthcoming). This together with the slow or, even, non-existent response of national lawmakers to the increasing calls to make legislation which regulates – and caters for the needs of – all families, has meant that children who are born in alternative families remain in a legal vacuum or are subject to different legal rules than the rules that apply to children born in nuclear families. In practice, this often leads to situations whereby the relationship of those children with one or both of their parents cannot be legally established, as the law still systematically regulates only the nuclear family and ignores the existence of some or all types of alternative families. Similarly, when alternative families cross State borders the familial ties among their members which have been validly established under another legal system may be severed. The fact that nowadays more and more children grow up in families which do not fit the heteronormative nuclear family model, challenges the current regulatory void and puts pressure on lawmakers for revising the outdated legal framework governing the regulation of parenthood in order to give full legal recognition and protection to alternative families.

Substantive family law is an area in which European States zealously guard their policy autonomy as the issues it touches upon are closely associated with the historically, culturally and morally distinctive understandings of family composition and family life that prevail in different European societies (Antokolskaia 2007). The absence of European Union (EU) competence in the substantive family law field and the reticence that the European Court of Human Rights (ECtHR) has traditionally shown in this area, mean that national family laws in Europe remain widely divergent. Parenthood, in particular, is one of the most delicate aspects of family law and the laws of European States give different answers to important questions, such as who can ‘found a family’ and in what ways, what should be the State’s approach to single parenthood, whether two persons of the same sex should be legally established as the joint legal parents of a child, and whether surrogacy should be permitted, banned or regulated. Thus, although some European States maintain a clear dividing line between nuclear and alternative families by offering legal recognition and protection only to the former and families that resemble the former (for instance, married different-sex couples with their adopted – non-genetic – children), in other European States this dividing line seems to be more and more blurred, as the law appears to be increasingly giving legal recognition to parenthood in situations where the family does not fit within the nuclear family model.

It is, nonetheless, not the aim of this article to analyse the approach of European States towards the initial establishment of (legal) parenthood or, even, the recognition in their territory of parenthood that was validly established in another jurisdiction. Rather, its aim is to consider the protection that European law (i.e. EU law and the European Convention on Human Rights (ECHR)) currently offers (and may potentially offer) to alternative families in situations where a State refuses to recognise legal parenthood that was validly established in another State. As will be seen subsequently in this article, the children of same-sex parents that had their parenthood legally established in their State of residence may be faced with the refusal of another European State (e.g. the State of nationality of one of their parents) to legally recognise them as the children of one (or sometimes even both) of their parents. Similarly, surrogate-born children who were born in a State that allows surrogacy and had their relationship with their (intended) parents legally established there, may be faced with a severance of their (legal) ties with one (or even both) of their parents, once the family returns to its State of residence. Such a loss of legal ties can have severe psychological consequences for everyone involved, but can also lead to a plethora of administrative and legal difficulties for the child and the parents: for instance, the child cannot acquire the nationality of the non-recognised parent, nor can they inherit that parent’s property, whilst the non-recognised parent does not benefit from any administrative privileges in relation to the child, such as to travel alone with the child, consent to medical care, or open a bank account for the child (for further examples of such difficulties see Tryfonidou 2019, pp. 226–227). Accordingly, the non-recognition of the family ties among the members of alternative families in cross-border situations in Europe is a real problem that needs a comprehensive solution.

The structure of the article is as follows. The next section (Section 2) briefly explains the current approach towards the establishment of parenthood in Europe: at which level (national/European) lies the competence to regulate parenthood issues, how parenthood can be established, as well as the persisting divergence in the regulation of family law matters by European States and the ensuing problem of non-recognition of parenthood that was validly established abroad. Section 3 then analyses the current position regarding the obligations imposed by European law for the cross-border recognition of parenthood, by focusing on the pronouncements of the two European supranational courts on the matter. It will be seen that although this case-law requires States in specific instances to offer legal recognition to alternative families where parenthood was established in another jurisdiction, it does not offer a complete solution to the problem of non-recognition of parenthood. The subsequent section – Section 4 – briefly considers the future prospects for a comprehensive solution in this area, by considering the Commission’s 2022 proposal for an EU Regulation on the cross-border recognition of parenthood (Proposal for Parenthood Regulation), and the Hague Conference on Private International Law (HCCH) parentage/surrogacy project, which is currently under discussion. Section 5 concludes.

Family law and the establishment of parenthood in Europe

Family law is influenced by the moral, religious, social, and political factors prevailing in a specific society. This explains the great diversity in the family law systems around the world. This diversity is prevalent even within continents and regions which are considered rather homogenous in political and social terms. Europe does not constitute an exception to this and, therefore, there is great diversity in the regulation of family law matters not only among the 46 Council of Europe Member States, but also among the narrower EU membership, which comprises 27 States.

To this day, the EU lacks competence in the family law field (but see Scherpe 2023), with one exception, which is matters concerning family law with cross-border implications (see Article 81(3) of the Treaty on the Functioning of the European Union (TFEU)). The Council of Europe, on the other hand, which is Europe’s leading human rights organisation, does not have legislative competences in any field though it does draft binding international Treaties which have as their aim to protect democracy, human rights, and the rule of law (Schmahl and Breuer 2017). The most important of these Treaties is the ECHR, which is interpreted and applied by the ECtHR. The latter is well-aware that family law is an area which is very close to States’ hearts and that it must therefore tread cautiously around matters which may influence national policies in the family law field or may require Member States to take particular actions in this field. Yet, as we shall see later in this article, in many of its rulings it has delivered bold pronouncements which have placed significant limits on the national legislator’s freedom to regulate family relationships and/or triggered reforms at the national level to ensure human rights protection of certain family relationships (Coester-Waltjen 2016).

Each European State has developed its own concept of civil status, taking into account its history, culture, and legal system. Parenthood is the civil status that governs the legal family relationship between a child and another person and is central to a person’s identity. From this status, many important rights and obligations arise. Parenthood is legally established by operation of law (by birth and by legal presumption) or by an act of a competent authority such as through a court or administrative decision, by a notarial deed, or by registration. The establishment of the parenthood of a child and the issuance of the civil status or judicial documents attesting this are required in order for the family to access certain public services or entitlements or to obtain social benefits such as family allowances and tax deductions, and for the child and the parents to be able to exercise the rights stemming from this status (for literature on the notion of parenthood see, inter alia, Lind and Hewitt 2009, Eekelaar and Šarčević 1993, Bainham et al. 1999, and – for the US perspective – Brank 2019).

Historically and prior to the advent of medically assisted procreation techniques, there was overall uniformity in the laws of different States regarding the issue of parenthood: States attributed parenthood at the moment of birth to the man and woman who appeared to be the procreators of a child, whilst adoption allowed the establishment of parenthood in situations where there was no genetic link between a child and one or both parent(s). However, the last few decades have seen an emerging diversity in the legal regulation of parenthood. This has come as a result of the increased visibility of alternative families combined with advances in medical science, which have enabled children to be born in circumstances and/or family configurations where this was not possible in the past (Trimmings and Beaumont 2016). States’ approaches to the parenthood of children born to and raised by (such) alternative families have varied greatly and, thus, there is no international or, even, European consensus on what are the relevant and decisive criteria for establishing parenthood, especially in situations that depart from the nuclear family model.

The fact that different countries have different rules regarding parenthood and regulate assisted reproduction techniques in different ways, has led many couples to travel abroad in order to become parents and have their status as parents legally established in situations where their own country’s legal framework would not have allowed this. Such families subsequently return to their State of residence seeking to have that parenthood legally recognised. The family may then be faced in its State of residence with a refusal of recognition of the (legal) parenthood of their child(ren). The problem of non-recognition is, nonetheless, not only faced by families that have actively resorted to more permissive legal systems in order to become parents. This problem can also affect any family that needs to claim recognition of parenthood in another State, with alternative families which do not conform to the nuclear family model being most at risk of being confronted with this problem.

As noted elsewhere (Tryfonidou 2023a), the problem of non-recognition of parenthood in cross-border situations is a by-product of the existence of different national substantive family laws regarding the establishment of parenthood, combined with the existence of different private international law rules governing the establishment and recognition of parenthood in cross-border situations. This combination makes it impossible to determine which one of the substantive family law rules of the different States should apply in a situation which concerns parenthood and which has points of contact with more than one State, or the courts of which State have jurisdiction to deal with parenthood matters: different rules regarding which laws should apply or which courts have jurisdiction co-exist in different States, whilst there is not a generally applicable mutual recognition obligation which requires all States to recognise parenthood validly established in another State.

The EU Commission has recently estimated that in the EU alone currently up to 2 million children may face difficulties with the recognition by an EU Member State of their parenthood established in another EU Member State (Explanatory Memorandum attached to Proposal for Parenthood Regulation, p. 2). This figure excludes children whose parenthood was established in a European (albeit non-EU) State or a third State, and does not include instances of non-recognition by European States that are not members of the EU. As noted elsewhere (Tryfonidou 2023b), the non-recognition of parenthood already established under the rules of another jurisdiction can have far-reaching (negative) consequences for all involved, and is, thus, a real problem. The next section of this article, therefore, considers the ways in which European law has responded to date to this significant problem.

The cross-border recognition of parenthood under European law: the current position

This section has as its aim to consider the ways in which European law has been interpreted in order to respond to the problem of non-recognition of parenthood that emerges in cross-border situations. Two preliminary points should be made here. The first is that to date the only reaction to this problem at European level has emerged judicially. This means, however, that any solutions provided through the case-law of the two supranational European Courts are only partial, in that they apply to only certain instances of non-recognition (i.e. those that were at issue on the facts of the relevant cases). As is always the case with judicial rulings, the main concern of the two Courts in this case-law was to provide a solution to the particular situation that was at issue in the specific case concerned, and not to provide a generally applicable and comprehensive solution to the problem of non-recognition. The second point is that the effectiveness of judicial rulings delivered by supranational courts always depends on the extent to which they are enforced at national level: thus, even if CJEU or ECtHR rulings do provide a solution to the problem of non-recognition of parenthood in certain instances, there is no guarantee that States will actually implement those solutions and grant recognition where this is required by European law (e.g. Coman and others, 2018).

EU law

As already noted in the previous section, the EU does not have competence in the substantive family law field, though it does have the competence to take measures with regard to the procedural aspects of family law with cross-border implications and has already done so with a number of private international law instruments (e.g. Regulation 650/2012 and Regulation 4/2009). Thus, it is up to each EU Member State to determine who can become a parent and how, and how parenthood can be legally established in its territory. This lack of EU competence on the matter means, for instance, that it is only some EU Member States that allow a child to have two (legal) parents of the same sex (see ILGA Europe Rainbow Map 2023) and those which do not allow this, usually consider that the child has only one legal parent, who is deemed to be the one who is genetically related to the child (in situations involving male same-sex couples) or the woman who gave birth to the child (in situations involving female same-sex couples). Similarly, surrogacy is only allowed in a small minority of EU Member States and only subject to conditions, whilst in some EU Member States it is forbidden and may even attract criminal sanctions (Scherpe et al. 2019). Under the current Treaty arrangements, this diversity in the family laws of EU Member States is perfectly acceptable, as long as it does not go against any of the EU’s aims and policies and does not impede the exercise of any of the rights stemming from EU law (Coman and others, 2018, paras. 37–38).

The important question for the purposes of this article, nonetheless, concerns the recognition by EU Member States of parenthood that has already been established in another country: can EU Member States rely on their own policy choices regarding who can be legally established in their territory as the parent of a child in order to refuse to recognise the parenthood of a child validly established under the laws of another jurisdiction? Currently, we only have a partial answer to this question (Tryfonidou, forthcoming; for case-law see, inter alia, Baumbast, 2002; SM, 2019), which was provided judicially in the V.M.A. case (2021) (for an analysis see Tryfonidou 2022, Lima 2022, Bracken 2022).

V.M.A. involved the issue of the cross-border legal recognition of the parenthood of a child born to a same-sex couple in an EU Member State, where the child’s parenthood was first established and evidenced by a birth certificate issued by that State. The applicant – V.M.A. – is a Bulgarian national married to K.D.K., a British national. The two women married in Spain, where they have been resident since 2015. In 2019 the couple had a child – S.D.K.A. – who was born and has been resident with both parents in Spain. S.D.K.A’.s birth certificate issued by the Spanish authorities refers to V.M.A. as ‘Mother A’ and to K.D.K. as ‘Mother’ of the child. Thus, the parenthood of the child and her ties to V.M.A. and S.D.K.A. were legally established in Spain. The problems for the family began when V.M.A. applied to the Sofia municipality for a birth certificate for S.D.K.A., the certificate being necessary, inter alia, for the issuance of a Bulgarian identity document. The Sofia municipality refused V.M.A’.s application for a birth certificate to be issued for S.D.K.A, the main reason for the refusal being ‘the fact that a reference to two female parents on a birth certificate was contrary to the public policy of the Republic of Bulgaria’ (para. 23 of the judgment). V.M.A. brought an action against that refusal before a Bulgarian court, which made a reference for a preliminary ruling to the CJEU, asking essentially whether the Bulgarian authorities were required by EU law to issue the birth certificate applied for.

In its ruling, the CJEU assumed that S.D.K.A. had Bulgarian nationality. It therefore pointed out that as a Union citizen (Bulgarian) who was born in the host Member State of her parents (Spain), S.D.K.A. could claim rights deriving from EU law in her Member State of nationality (Bulgaria) (paras. 39–42 of the judgment). Τhe first main point made by the Court was that the Bulgarian authorities should issue to the child an identity card or a passport stating her nationality and her surname as it appears on the birth certificate drawn up by the Spanish authorities’ (para. 44 of the judgment). The Court explained the rationale behind this requirement, which is that such a document is necessary in order to enable a child in S.D.K.A’.s situation to exercise the right to free movement within the EU with each of her two mothers, whose status as parent of that child has been established by their host Member State (para. 46 of the judgment). The requirement imposed on Member States to recognise the parenthood of a child as established in another Member State is laid down clearly in paragraph 48 of the judgment: the Spanish authorities had lawfully established that there was a parent-child relationship between S.D.K.A. and her two parents, V.M.A. and K.D.K., which was attested in the child’s birth certificate and, thus, V.M.A. and K.D.K. must ‘as parents of a Union citizen who is a minor and of whom they are the primary carers, be recognised by all Member States as having the right to accompany that child when her right to move and reside freely within the territory of the Member States is being exercised’.

The Court then proceeded to note that Bulgaria could not rely on public policy or its need to protect its national identity in order to justify its refusal to recognise two persons of the same sex as the joint legal parents of a child (paras. 53–57 of the judgment). It explained that although, presently, a person’s marital or parental status is a matter that falls within national competence and thus Member States are free to decide whether or not to allow marriage and parenthood for persons of the same sex in their territory, when exercising that competence, Member States must comply with EU law, including with the free movement provisions of the TFEU (para. 52 of the judgment). The Court added that in any event such a refusal of recognition can only be justified where it is consistent with the fundamental rights guaranteed by the Charter (para. 58 of the judgment). However, depriving the child of her relationship with one of her parents when exercising her free movement rights amounts, according to the Court, to a violation of Articles 7 and 24 of the Charter (para. 65 of the judgment).

Accordingly, in this case the CJEU clarified that while EU Member States maintain their competence in the substantive family law field and can, thus, determine who can become established as the parent(s) of a child under their laws, they are nonetheless required by EU law to recognise the parenthood established in another EU Member State, for the purpose of enabling the child together with his or her parents to exercise free movement rights stemming from EU law.

It should be noted, nonetheless, that as emphasised in the literature (Tryfonidou 2022, Bracken 2022, Lima 2022, Křičková 2023), this ruling – which was confirmed in a subsequent Court order in another case which involved similar facts (Rzecznik Praw Obywatelskich v K.S. and Others, 2022) – has not clarified all issues concerning the cross-border legal recognition of the familial ties among the members of an alternative family and does not provide a solution to all instances of non-recognition of parenthood. In particular, it seems that the judgment requires the cross-border recognition of parenthood established in an EU Member State, but does not clarify whether the same requirement of recognition would have applied if the parenthood had been established in a non-EU country. What is more, it is not clear from the judgment, what, exactly, this requirement of cross-border recognition of parenthood entails: the judgment appears to require the cross-border recognition of parenthood only for the purpose of the exercise of EU free movement rights, which can be interpreted narrowly, as requiring merely the grant of family reunification rights, or more broadly, as requiring the cross-border recognition of parenthood in all situations where this is necessary in order to enable Union citizens ‘to lead a normal family life’ (Tryfonidou 2022). And, finally, the ruling does not provide a solution in situations where there is no exercise of EU free movement rights: in such situations, the recognition of parenthood established abroad is not governed by EU law but is rather determined by the private international law rules of the EU Member State concerned. Accordingly, it seems that currently EU law only provides protection to alternative families who have exercised EU free movement rights and who seek recognition in an EU Member State of parenthood that has been established in another EU Member State. Nonetheless, it remains unclear for which purposes this recognition should be afforded: is it only for family reunification or is it for other purposes as well?

ECHR

Unlike the EU, which is a ‘sui generis’ entity lying somewhere in between a traditional international organisation and a fully-fledged federal State (Guerra Martins 2020, pp. 27–29), the Council of Europe does not have any legislative competences. Hence, the obligations it imposes on its Member States arise from its Treaties and the rulings of the ECtHR, which is tasked with interpreting and applying the organisation’s flagship instrument, the ECHR.

However, although the latter instrument provides, in its Article 8, for the right to respect for private and family life, in its case-law the ECtHR has made it clear that ‘[t]he right to respect for “family life” does not safeguard the mere desire to found a family; it presupposes the existence of a family’ (E.B. v France, 2008, para. 41; for an analysis of the concept of parenthood in ECtHR case-law see Lima 2019). Moreover, the same Court has refused to read Article 12 ECHR, which provides for the right to marry and to found a family, as imposing an obligation on ECHR signatory States to allow all individuals or couples to become parents and to be legally established as such, as the right to found a family in this provision has been read as a right to found a family within marriage (Rainey et al. 2021, p. 404). This reading of Article 12 ECHR permits, in other words, States that wish to refuse to certain couples (e.g. same-sex couples) the right to ‘found a family’ to do so, provided that they exclude such couples, also, from the right to marry. This – as will be seen in the next paragraph – is also confirmed in the Court’s case-law interpreting Article 8 ECHR.

And although from the above it is obvious that the ECHR signatory States are free to make their own choices as to who can become a parent, those policy choices are, nonetheless, limited by Article 14 ECHR, which requires that all Convention rights are secured and enjoyed without any discrimination on any of the prohibited grounds. The ECtHR has therefore read Article 14 ECHR together with Article 8 ECHR, in order to require ECHR signatory States to refrain from engaging in discrimination based on any of the prohibited grounds in their laws governing parenthood. One context in which this combination of Convention provisions has been relied on to claim parenthood rights is cases involving same-sex couples or single lesbian and gay persons that wished to become parents and were confronted with national laws or procedures that prevented them from doing so. The Strasbourg Court has held that where the sexual orientation of the applicant was a decisive factor in the rejection of her application for adoption, this amounted to a difference in treatment based on her sexual orientation as regards the right to respect for private and family life, and thus amounted to a violation of Article 8 ECHR read in conjunction with Article 14 ECHR (E.B. v France, 2008; but see Fretté v France, 2002). The same Court has also held that where unmarried same-sex couples are refused the right to be established as the joint legal parents of a child (through second-parent adoption) whereas unmarried different-sex couples can, this amounts to discrimination based on sexual orientation as regards the enjoyment of the right to respect for private and family life, contrary to Article 14 ECHR in conjunction with Article 8 ECHR (X and others v Austria 2013). However, in line with the Court’s interpretation of Article 12 ECHR noted in the previous paragraph, the ECtHR has held that at least with regard to issues involving parenthood (but see Taddeucci and McCall v Italy, 2016), ECHR signatory States can still draw a distinction between married and unmarried couples and reserve the right to become parents only to the former. This, in practice, means that States which do not allow same-sex couples to marry can also deprive them of the right to be jointly established as the legal parents of a child (Gas and Dubois v France, 2012).

For the purposes of this article, what interests us more, nonetheless, is the position of the ECtHR in situations involving a child whose parenthood that was validly established in another jurisdiction is not recognised by an ECHR signatory State. The Strasbourg Court rulings on this matter can be divided into two groups and both groups concern alternative families: the first group is comprised of case-law involving the cross-border recognition of adoption orders establishing a parent-child relationship between a child and a single person, while the second group consists of rulings in cases concerning the cross-border recognition of the parenthood of surrogate-born children.

The first case which reached the Strasbourg Court and involved the issue of the cross-border recognition of parenthood was Wagner and J.M.W.L. v Luxembourg (2007) (for an analysis see Fenton-Glynn 2016, Ragni 2019). The case concerned the refusal of the Luxembourg authorities to recognise and enforce a full adoption decision made by a Peruvian court, on the ground that the adoption of the child (J.M.W.L.) was made by an unmarried woman (Ms Wagner). The refusal was based on the fact that the Luxembourg Civil Code at the time did not make provision for full adoption by a single woman. The applicants (Ms Wagner and J.M.W.L.) complained that the Luxembourg authorities’ refusal infringed their right to respect for family life, laid down in Article 8 ECHR. Having concluded that the applicants enjoyed family life together (para. 117 of the judgment), the ECtHR proceeded to point out that the contested refusal amounted to an interference with their right to respect for family life (para. 123 of the judgment), which constituted a breach of Article 8 ECHR, unless it was justified under Article 8(2) ECHR (para. 124 of the judgment). When examining whether the contested refusal was justified, the Court pointed out that the interference was in accordance with the law (as it was based on the Luxembourg Civil Code) (para. 125 of the judgment), and was meant to protect the ‘health and morals’ and the ‘rights and freedoms’ of the child (para. 126 of the judgment). In considering the proportionality of the measure, the ECtHR concluded that the measure was not justified in accordance with Article 8(2) ECHR, pointing out that the decision refusing recognition fails to take account of the social reality of the situation, and the ‘applicants encounter obstacles in their daily life and the child is not afforded legal protection making it possible for her to be fully integrated into the adoptive family’ (para. 132 of the judgment). The ECtHR also concluded that there was a violation of Article 8 read in conjunction with Article 14 ECHR, as on the facts of the case there was an unjustified difference in treatment between children, according to whether or not the foreign full adoption judgment was recognised in Luxembourg (para. 156 of the judgment) (see, also, Negrepontis-Giannisis v Greece, 2013).

Accordingly, Article 8 ECHR, whether alone or read together with Article 14 ECHR, has been held to require ECHR signatory States to recognise and enforce an adoption order of a court of a foreign country that validly establishes filiation between a child and his or her adoptive (single) parent, unless a refusal of such recognition can be justified.

We should proceed now to the second group of ECtHR case-law on the cross-border recognition of parenthood, which concerns the parenthood of surrogate-born children (for analysis of this case-law see Tryfonidou, 2024, Trimmings 2019, Margaria 2024).

Surrogacy is a highly controversial technique of assisted reproduction and families that have been created through surrogacy and are comprised of (a) surrogate-born child(ren) and the intended parent(s) are considered alternative families. The regulation of surrogacy varies hugely from country to country, with some European States banning it completely, others permitting and explicitly regulating it, and others neither prohibiting it nor regulating it. Due to the fact that surrogacy is a rather recent method of assisted reproduction, questions involving it have reached the ECtHR only in the last decade. This case-law has arisen as a result of the efforts by intended parents to circumvent the surrogacy bans of their State of residence through pursuing international surrogacy arrangements in a jurisdiction with a permissive legal framework, where the child was born, before they returned to their State of residence where they sought recognition of the parent-child relationship as established in the country where the child was born.

The first surrogacy case that reached the ECtHR was Mennesson v France (2014) (see, also, Labassee v France 2014; Foulon and Bouvet v France 2016). France is one of the European States that explicitly prohibit surrogacy (Articles 16–7 and 16–9 of the French Civil Code). As explained on the facts of the case, Mr and Mrs Mennesson – French nationals living in France – could not have a child of their own because Mrs Mennesson was infertile. After a number of unsuccessful attempts to conceive a child using in vitro fertilisation (IVF) with their own gametes, the couple resorted to gestational surrogacy in the USA, using Mr Mennesson’s sperm and donor eggs. As a result of the arrangement, twin girls were born in California, where their parenthood was legally established and they were considered as the children of their intended parents, Mr and Mrs Mennesson. When the family returned to France, the four of them were allowed to live together, however, the French authorities denied recognition of the parent-child relationship between the children and the intended parents, as it would be contrary to public policy. The Mennesson family lodged an application with the ECtHR, through which they complained of a breach of the children’s and the (intended) parents’ right to respect for private and family life under Article 8 ECHR.

In its judgment, the ECtHR took a child-centred approach (Achmad 2014) and held that the refusal to recognise the parent-child relationship between the children and their genetic (intended) father, amounted to a breach of the children’s right to respect for their private life, as it affected the essence of their identity, which includes (genetic) parentage. Although it found that the four applicants (the intended parents and the children) enjoyed family life together and that the contested refusal to recognise the parent-child relationship between the children and their intended parents amounted to an interference with the enjoyment of family life, the Court nonetheless concluded that the interference was justified and proportionate in that the practical obstacles that the applicants encountered in their daily life due to the contested non-recognition of the parent-child relationship, were not insurmountable. Accordingly, the ECtHR held that there was a violation of Article 8 ECHR, but only as a result of an unjustified violation of the children’s right to respect for their private life, and only as regards the non-recognition of their relationship with their intended father who was genetically connected to them.

Mennesson v. France, therefore, clarified that the right to respect for private life of the children born through gestational surrogacy requires the State of residence of the family to recognise the parent-child relationship between the children and the intended father who is genetically linked to them. More recently, in D v. France, the same court clarified that where the intended parent who is genetically connected to the child is the mother rather than the father, the Mennesson v. France principle still applies and thus Article 8 ECHR requires signatory States to recognise the relationship between surrogate-born children and their intended mother who is genetically related to them (D v France, 2020).

However, what happens to the other intended parent who is not genetically connected to the surrogate-born child: does the ECHR require that the filiation between the child and that intended parent is also legally recognised by the State of residence of the family?

The ECtHR was called to answer this question in its (first) Advisory Opinion (2019) (confirmed in C and E v France, 2022, and C v Italy, 2023), which was a sequel to Mennesson v. France (for an analysis of the Advisory Opinion see Margaria 2020). In its Opinion, the Court focused on the ‘general and absolute impossibility of obtaining recognition of the relationship’ in France (para. 42 of the Advisory Opinion), which is incompatible with the best interests of the child that require that each situation be examined in the light of the particular circumstances of the case. The Court stressed that although the lack of European consensus on the issue would have pointed to a wide margin of appreciation being left for States, the margin ought to be reduced because the issue at stake involves particularly important facets of an individual’s identity as well as ‘essential aspects of the (children’s) private life’ (para. 45 of the Advisory Opinion).

Accordingly, the ECtHR concluded that Article 8 ECHR should be read as requiring domestic law to make provision for the recognition of the parent-child relationship lawfully established abroad between the children and the intended parent who is not genetically connected to them, in situations where the other intended parent is genetically connected to them (see, also, D B and others v Switzerland 2022). As noted by Lavrysen (2019), the sole obligation that the Opinion imposes on States is to provide ‘access to an effective procedural mechanism’, which allows for the recognition of the legal relationship between the children and the intended mother, albeit not necessarily automatically.

Subsequently, in KK and others v Denmark (2022), the ECtHR applied the above principle in an application lodged before it which involved the refusal of the Danish authorities to allow the intended (non-genetic) mother of two surrogate-born children (who was married to their intended (genetic) father) to adopt them. The Court held that this amounted to a breach of the children’s right to respect for private life under Article 8 ECHR. This was because Danish law did not provide any other possibilities of recognition of a legal parent-child relationship between the children and the intended mother and this ‘had a negative impact on the children’s right to respect for their private life, in particular because it placed them in a position of legal uncertainty regarding their identity within society’ (KK and others v Denmark 2022, para. 72).

The above case-law does not cater for all instances involving the non-recognition of the parenthood of surrogate-born children. In particular, the rulings that have been delivered to date appear to only impose an obligation on States to afford cross-border recognition of parenthood in situations where at least one of the intended parents of the child has a genetic link with it: hence, where neither of the intended parents is genetically related to the child, the ECtHR has not imposed an obligation of recognition and a refusal of recognition shall be deemed to be proportionate, especially if the national authorities allow the family to live together and offer the option to the intended parents to adopt the child (Valdís Fjölnisdóttir and others v Iceland 2021). Moreover, if – like in S-H v Poland (2021) – the State where recognition is sought is not the State of residence of the family but merely the State of nationality of one of the (intended) parents (even if this is the parent who is genetically related to the child(ren)), the ECHR does not impose an obligation of recognition.

Hence, as noted at the beginning of this section, the solutions provided by the ECtHR in individual cases do not cater for every single instance of non-recognition of parenthood of a surrogate-born child. There are situations where the Court made a conscious choice of not imposing an obligation of recognition and of sanctioning the actions of a State under which not only was recognition refused but, also, the baby was removed from the intended parents and placed for adoption (Paradiso and Campanelli v. Italy [GC], 2017); or situations where the refusal of recognition was deemed not to be disproportionate as the intended parents had the option under national law of adopting the child (Valdís Fjölnisdóttir and others v Iceland 2021). Moreover, none of the cases that reached the Court to date involved traditional surrogacy, whereby the surrogate is also the egg donor, and, thus, it is not clear whether the principles established through the Court’s case-law to date in situations involving gestational surrogacy would be applicable also to traditional surrogacy.

Nonetheless, it needs to be emphasised that unlike the CJEU case-law which requires the cross-border recognition of parenthood which was established in an EU Member State, where it does so the ECtHR imposes an obligation of recognition of parenthood that was validly established in any country. This is extremely important, especially for surrogate-born children, as in the majority of instances these children are born in non-European countries, due to the fact that it is only a minority of European States (and even a slimmer minority of EU Member States) that allow surrogacy in their territory, and often only subject to strict conditions.

The cross-border recognition of parenthood under European law: prospects for the future

This section has as its aim to briefly explore the proposals that are currently on the table and which may be able to offer – if adopted – a comprehensive solution to the problem of non-recognition of parenthood in cross-border situations. The first measure which is considered is the European Commission’s recently submitted proposal for a Regulation on the cross-border recognition of parenthood (Proposal for Parenthood Regulation). The section, then, considers the recent steps taken by the HCCH for initiating a process which may lead to the adoption of binding measures on the cross-border recognition of parenthood at an international (i.e. not just European) level.

The proposed EU regulation on the cross-border recognition of parenthood

In response to the problem of non-recognition of parenthood and its significant negative consequences for the families affected, in her State of the Union address in September 2020, the President of the European Commission, Ursula von der Leyen, noted that she would ‘push for mutual recognition of family relations in the EU. If you are parent in one country, you are parent in every country’ (State of the Union Address by President von der Leyen 2020). The promise materialised in the form of a proposal for a Regulation, which was published in 2022 and which has as its aim to harmonise the private international laws of EU Member States regarding the establishment and recognition of parenthood in cross-border situations (for an analysis of the proposal see Gössl 2023, Tryfonidou 2023a, 2023b, Mansel et al. 2023, Kohler and Pintens 2023). The proposed Regulation makes provision for a) the adoption of common rules for the determination of the courts of the EU Member States that have jurisdiction in matters relating to the establishment of parenthood in cross-border situations (Articles 6–15); b) the adoption of common rules for the determination of the law applicable to the establishment of parenthood in cross-border situations (Articles 16–23); c) a mutual recognition obligation of parenthood established in an EU Member State (Articles 24–45); and d) the creation of a European Certificate of Parenthood, which can be issued by the Member State where parenthood was established and can be used to prove parenthood in all other Member States (Articles 46–57). The instrument thus addresses all main questions of private international law with regard to the establishment and recognition of parenthood in cross-border situations, whilst it leaves untouched the substantive family laws of the EU Member States which concern the establishment and recognition of parenthood.

In line with previous practice through which it harmonised the private international law rules of the EU Member States concerning different family law issues, the Commission decided to use Article 81(3) TFEU as a legal basis for the proposed Regulation. This legal basis provides that measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure and that the Council shall act unanimously after consulting the European Parliament. As noted elsewhere (Tryfonidou 2023a), the requirement of unanimity in the Council, which is a prerequisite for the proposal to pass and become legally binding, is the most significant challenge that this initiative may face, as the instrument has already proved to be very controversial. In particular, the inclusion within its scope of protection of surrogate-born children and the requirement of the cross-border recognition of rainbow families have proved to be the two main points of contention, as indicated in heated debates before the European Parliament. Nonetheless, in December 2023, the European Parliament (with 366 votes in favour, 145 against, and 23 abstentions) backed the draft Regulation (with some proposed amendments). As regards the two main points of contention noted above, in its adopted text the European Parliament simply sought to reassure its opposing members (and the Member States) that the instrument does not intend to harmonise the substantive family laws of the Member States, and thus Member States will continue to be free to decide how (if at all) to regulate surrogacy and parenthood by same-sex couples within their territory (EP Press Release 2024). Needless to say, maintaining the proposed Regulation in its current form, which includes all children and, in particular, the children of alternative families, is imperative, given that the latter constitute the children who are ‘disproportionately affected’ by the problem of non-recognition of parenthood in the EU (ICF S.A. Final Report 2022).

One important point to note is that the proposed Regulation ‘shall not apply to the recognition of court decisions establishing parenthood given in a third State, or to the recognition or, as the case may be, acceptance of authentic instruments establishing or proving parenthood drawn up or registered in a third State’ (Article 3(3) of the proposal). Accordingly, in line with the CJEU’s pronouncement in the V.M.A. case seen in the previous section of this article, the instrument only makes provision for mutual recognition of parenthood in situations where parenthood was established in an EU Member State, thus leaving an important gap in protection in situations where a child’s parenthood was established in a non-EU State.

The proposed measure, nonetheless, goes further than the protection currently afforded under EU law, in that it covers the other important gap left by the V.M.A. ruling, as it shall require the cross-border recognition of parenthood established in an EU Member State for all legal purposes (and not just for the purpose of exercising EU free movement rights). Accordingly, the proposed Regulation is a very positive step towards a comprehensive solution to the problem of non-recognition of parenthood, albeit only for children whose parenthood was established in an EU Member State. It is, therefore, hoped that the requisite unanimity will be achieved and that it will come into force in its current form as this will further blur the dividing line between nuclear families and alternative families, albeit only in cross-border situations and where parenthood has already been established in an EU Member State.

The HCCH project

At international level, there is currently no legal instrument concerned with the cross-border recognition of parenthood. Nonetheless, a similar initiative to the one recently undertaken by the European Commission has been in preparation for several years by the HCCH (for deteails see HCCH website).

The HCCH is a global intergovernmental organisation the mandate of which is the progressive unification of the rules of private international law (Article 1 of the Statute of the HCCH) (for an analysis of the HCCH see John et al. 2020). All 27 EU Member States and all (apart from Liechtenstein and San Marino) of the Council of Europe Member States are members to the HCCH, as is the EU itself.

Since its inception, the HCCH has adopted over 40 Conventions and instruments though none of those instruments concerns the cross-border recognition of parenthood. Nonetheless, pursuant to a mandate of its Members, the Permanent Bureau of the HCCH conducted research between 2010 and 2015 specifically on the issues arising from the non-recognition of parenthood in cross-border situations. On this basis, an Experts’ Group was set up in 2015 to explore the feasibility of adopting a (binding) convention on legal parentage and a separate optional (binding) protocol on legal parentage established as a result of international surrogacy arrangements. The Experts’ Group had annual meetings from 2016 until 2021 and delivered its final Report in November 2022, which is entitled ‘The feasibility of one or more private international law instruments on legal parentage’, and recommends, inter alia, the establishment of a Working Group to explore the provisions of a possible convention on legal parentage and protocol on legal parentage established as a result of international surrogacy arrangements (the reports of the meetings of the Experts’ Group as well as the final report can be accessed via the HCCH Experts’ Group webpage). Upon its publication, the Report was submitted to the HCCH Council on General Affairs and Policy (CGAP) for consideration at its meeting in spring 2023. At its 7–10 March 2023 meeting, CGAP welcomed the Report and mandated the establishment of a Working Group on Private International Law matters related to legal parentage generally, including legal parentage resulting from an international surrogacy arrangement (see CGAP Decisions and Conclusions 2023).

If the HCCH proceeds with the adoption of the Convention and the Protocol, this can constitute a(nother) solution to the problem of non-recognition of parenthood faced by (especially alternative) families in Europe. Such an instrument will complement and possibly – depending on the final form it will take – fill in the gaps left by the proposed Commission Regulation, as it will cover the cross-border recognition of parenthood established in non-EU countries. However, at the moment of writing, the project is only in its preparatory stage and it will take a significant amount of time before a proposal for a binding instrument will be prepared, agreed by members, and – if at all – be widely ratified, including by all European States.

Conclusion

Historically, the issue of who were a child’s parents was in most instances settled as it was widely considered that the nuclear family was the (only) valid family formation and, as such, should be the (only) family configuration that should be protected and recognised under the law. It is therefore not surprising that traditionally there was an overall uniformity in the laws of different European States regarding parenthood-related issues.

However, uncertainty has arisen in recent decades, mostly as a result of advances in medicine coupled with an increased visibility of alternative families. Some European States have already begun to acknowledge this changing landscape of family life in their family law and policy and thus afford legal recognition to some or all types of alternative families. However, there are still many States that maintain a strict dividing line between nuclear and alternative families, by refusing or granting only limited legal recognition to the latter. In such States, therefore, the dream of becoming a parent often turns into a nightmare: the child that has joined the family may not be legally established as the child of both parents or if the child’s parenthood has been legally established abroad it may not be recognised in the State of residence of the family.

The aim of this article was to place the problem of the non-recognition of parenthood in the European context and to consider the ways in which European law has responded to this problem to this day. The article also explored the future prospects for a comprehensive solution to this problem. It was explained that the way that the European supranational Courts have responded to this problem to date has offered only partial solutions to it, as their rulings have required the cross-border recognition of parenthood in only certain circumstances. Hence, many children whose family does not conform to the nuclear family model continue to suffer in some States the plight of non-recognition of their parenthood, despite the fact that their status as children of their parents was validly established under the laws of another jurisdiction. Although the two European supranational Courts have interpreted European law in such a way as to cater, in most instances, for the rights of children and their parents who constitute alternative families, their approach to date to this issue has been developed in a piecemeal fashion and, thus, leaves many questions unanswered as well as gaps in protection. Accordingly, although, at the supranational level, as regards the establishment and recognition of legal parenthood, the dividing line between the children of alternative families and the children born to nuclear families appears to be more and more blurred, it nonetheless persists and shall continue to persist unless a comprehensive European solution to this issue will be offered.

Although recent years have seen a surge in efforts to find a comprehensive (or, at least, near-comprehensive) solution to the problem of non-recognition of parenthood in cross-border situations, the chances of achieving such a solution appear grim. It is doubtful that the proposed EU Regulation on the cross-border recognition of parenthood will achieve a unanimous approval in the Council as is required by the legal basis chosen (at least in its current form), whilst the solution that may be proposed by the HCCH is currently at a very early stage and based upon too many hypotheticals: if a binding instrument will be proposed, if it will be agreed by the HCCH Member States, and if it will be ratified by European State.

Acknowledgments

I am very grateful to the anonymous reviewers for their helpful suggestions on a previous draft of this article. All errors remain mine.

Disclosure statement

No potential conflict of interest was reported by the author(s).