ABSTRACT

Th is contribution critically reviews the European Commission's Proposal for a Regulation on the Recognition of Parenthood between Member States, adopted at the end of 2022. The contribution focuses on how the draft text deals with the cross-border recognition of children born out of surrogacy, linking human rights perspectives with a private international law analysis. By doing so, the contribution provides an overview of the relevant provisions of the Proposal, highlights problematic aspects with regard to surrogacy and children's rights, and tries to offer discussion points for the ongoing legislative procedure.

INTRODUCTION

In December 2022, the European Commission adopted a Proposal for a Regulation aimed at harmonising the rules of private international law related to parenthood within the European Union (EU). Parenthood established in one Member State would have to be recognised in all the other Member States. In addition to enhancing freedom of movement, the declared objective of the Proposal is to strengthen the protection of children's fundamental rights in cross-border situations, safeguarding, in particular, their right to an identity, and to family life. For these purposes, the Proposal sets out common rules on jurisdiction, applicable law and the recognition of decisions and authentic instruments, and introduces a European Certificate of Parenthood . What the Commission ultimately wants to achieve is to turn Commission President Ursula von der Leyen's famous statement into reality: ‘If you are parent in one country, you are parent in every country.’

Whether the statement also applies to surrogate-born children remains to be seen. Currently, parents who resorted to using surrogates in foreign countries are not only oft en confronted with burdensome and costly procedures when they try to have their parenthood status recognised in their country of origin, but might also have to face legal uncertainty. The situation is complicated by the different stands Member States have taken with regard to surrogacy. Some European countries do, under certain conditions, allow people (‘intended parents’ or ‘commissioning parents’) to engage a woman (‘surrogate’) for the delivery of a child. Others recognise children born out of surrogacy in relatively uncomplicated ways, even if the practice took place in a third country. Still other Member States are more reluctant when it comes to recognising parent-child relationships in surrogacy cases.