This project aims to engage a discussion about the lack of mutual recognition that leads to the dissociation between status, filiation and procreation and takes into account the new concept of social parenthood, as an alternative and adequate model for the best interest of the child. In the recognition in the European Union of a parent-child relationship, whether between a child and a married same-sex couple or between a child and intentional parents in surrogacy agreements, it is essential to strike a balance between the national identity of the Member States and the concept of the family in the traditional sense, on the one hand, and the right to freedom of movement of the child and his or her parents, on the other: the Member State must recognise the parent-child relationship – regardless of its basis – at least for the purposes of exercising the rights conferred on EU citizens by European law. The recognition of foreign acts or parental orders does not amend the domestic concept of family and family law.
Such as legal and genetic parenthood, social parenthood requires the elaboration of a common structure and the identification of the founding principles, as a model of general and not exceptional nature. It is necessary to harmonise the internal rules of parenting based on consent and agreements, to contribute to the effective and coherent application and enforcement of EU instruments.
Given the discretionary power of MS to identify sanctions for conduct deemed reprehensible and provide a legal framework on ethically sensitive issues, the protection of the best interests of the child cannot succumb. As stated by AG Kokott (in C-490/20): “a Member State must recognise the parentage of a child for the purposes of the exercise of the rights conferred by EU law on European Union citizens (…) If you are a parent in one country, you are a parent in every country”. As stated by the Committee of Experts on Family Law (“White Paper” on principles concerning the establishment and legal consequences of parentage (CJ-FA (2001) 16 rev), “Children do not live in a vacuum, but within a family and an important part of their protection is that the family unit, no matter what form it takes, enjoys adequate and equal legal recognition and protection. (…) it cannot be in the best interest of (…) children to leave their important relationships of care outside of the legal framework of rights and responsibilities (…)The challenge is to ensure that all children enjoy human rights equally”.
The aim is to guarantee the effective circulation of statuses. The interest of the child requires the identification of adequate and stable forms of protection for births and adoptions in conflict with the prohibitions, capable of ensuring the effectiveness of the consent and agreements concluded by the social parents