Law of the “Families”
The latest JUST PARENT workshop will be held in Berlin, organized by our German Unit, on July 10, 2023. Notaries, lawyers and academics will share perspectives
Codes and statutes provide the legal framework for biological and legal parenthood for each Member State (MS) in the European Union. However, the concept of family is changing, due to scientific, technological and social developments. More and more people are attempting to establish parentage through informed consent, contracts or agreements. The new forms of social parenthood have been identified by recent jurisprudence and academics as intentional parenting and de facto parenting. These new concepts arise from the importance given to the affective relationship established by the child with the person who has assumed responsibility for a parental project, but who doesn’t share a gene pool nor a biological link. More precisely, social parenthood has been traced in a number of scenarios:
- the minor adoption by same sex couples;
- the minor adoption by the same sex cohabiting partner of the legal and genetic parent;
- the procreation with medically assisted reproduction technologies;
- the procreation with surrogacy;
- the procreation with post mortem treatment.
In these scenarios, the factual relationship or the informed consent or the agreement between the parties constitute the basis for the parent-child relationship.
Due to the social and scientific developments outlined above, MS provided and are still providing a legal framework. However, where provided, the frameworks are not aligned, for various reasons:
- some MS ban commercial or altruistic surrogacy agreements, thus introducing public order obstacles which prevent the recognition and the enforcement of birth certificates;
- some MS ban same-sex adoption, thus introducing public order obstacles which prevent the enforcement of the judgment given in a Member State;
- where legal protection of new social formation is provided, the regulations are not uniform among MS in terms of time frame and subject matter;
- where legal protection for new social formation is provided, the whole legal system is not fully updated to take account of legal, scientific and social developments;
- where legal protection on new social formation is provided and the system is updated, domestic rules for civil status officers do not always comply with these provisions in order to respect the meaning of Article 81 TFEU, Article 8 ECHR, Articles 2, 3, 7, 8, 9 and 18 United Nations Convention on the Rights of the Child and the Hague Convention.
Based on this evidence, the lack of harmony constitutes an obstacle to an effective and adequate mutual recognition of civil status and family matters.
Such a lack of mutual recognition leads to the dissociation between status, filiation and procreation and generates public policy obstacles that preclude, in accordance with Reg. Bruxelles no. 1215/2012, the recognition of foreign parental orders between SM countries and inter and extra EU countries. For this reason, in order to achieve the objective of protecting the status acquired abroad and the best interests of the child, it becomes necessary to harmonize the domestic rules on artificial insemination, surrogacy, filiation, adoption and civil unions, which, while respecting the SM legislators’ discretion, may prohibit conduct considered reprehensible, nevertheless allowing recognition of the status of children and parents in social families, despite the violation of the rules by doctors and parents. Moreover, the lack of harmonization and the ordre public obstacles also risk producing forms of intersectional discrimination towards same-sex couples and their children.
The general objective of the project is to overcome such national disparities preparing the basis for a future harmonization of the matter able to guarantee the effective circulation of statuses.
