3rd of February 2023, Brussels
“A child is not an entitlement and parenthood is not a right; rather, a child is a gift and parenthood is a responsibility.” These were the words of FAFCE’s President, Vincenzo Bassi, in an open letter reacting to the announcement of an European legislative initiative on ‘Cross-Border Family Situations-Recognition of Parenthood’. Back in 2020, the President of the European Commission, Ursula von der Leyen, declared that “if you are parent in one country, you are parent in every country.” Last December, the European Commission published a legislative proposal on the topic, on which citizens are invited to express their opinion in a public consultation until the 13th of February.
This initiative includes the automatic cross-border recognition of ‘parenthood’, a wording that creates confusion with the usual legal and biological term of ‘filiation’. According to the European Commission, this initiative will not change the law on marriage of EU Member-States, since family law is an exclusive competence of Member States. “Yet – commented the President of FAFCE – the introduction of a new legal category, ‘parenthood’, which goes beyond the current terminology of ‘filiation’, does have an impact on family domestic law.” Indeed, the above-said initiative of the European Commission, if approved, would automatically extend the legal effects of the filiation to all types of ‘parenthood’ legally acquired in one Member State, including through surrogacy, in all EU Member-States uniformly. “Beyond the declared intention of not interfering with Member States’ family law, this scenario would put the Commission’s proposal in contradiction with Art. 9 of the EU Charter of Fundamental Rights, stating that “The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights”, he concluded.
While welcoming the attention devoted by the European Commission to ensuring the protection of children, FAFCE also invites the European legislators to respect both the principle of subsidiarity and the principle of proportionality. Addressing this matter indeed supposes for the EU to respect the balance between Member States’ exclusive competence to adopt substantive rules of family law and the EU’s competence to adopt measures concerning family law with cross-border implications (TFEU 81 (3)).
FAFCE is of the view that non-legislative, case-by-case basis measures, applied through the judicial cooperation mechanism, is enough to tackle cross-border family situations.
FAFCE also expresses serious concerns when it comes to the de factorecognition of the practice of surrogacy in the initiative. In 2021, the European Parliament stated that the “sexual exploitation for surrogacy and reproductive purposes […] is unacceptable and a violation of human dignity and human rights.” As a matter of fact, most EU-countries forbid this practice. Among them: Austria, Bulgaria, Croatia, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia, Spain and Sweden. Not only does the practice of surrogacy violate the fundamental rights and bodily integrity of women used as surrogate mothers, but also the rights of the child, who can in this way become a victim of human trafficking. While the European Commission’s proposal presents the child’s best interest as a pillar of its proposal, the inclusion of surrogacy as one of the areas addressed is against these very best interests.
To enter into force, the Commission’s proposal must be adopted unanimously by the Council of the EU, after consulting the European Parliament. A public hearing was held in the European Parliament on January 9th, 2023, where the Commission announced that it would do everything possible to achieve the adoption of a Regulation that would have direct effects in all Member States, rather than just entailing an ‘enhanced cooperation’ between the Member States that will be willing to join. Yet for now, Poland and Hungary announced that they will veto the initiative within the Council of the EU, which can therefore be expected to be blocked.
The European Commission also opened a public consultation for all stakeholders, including civil society organisations and EU citizens, to directly raise their opinion, open until the 13th of February 2023. FAFCE encourages everybody to take part.