On Wednesday 14 April, the European Commission published an impact assessment with a view to presenting, in 2022, a legislative initiative to ensure the recognition of parenthood among the EU27.
This initiative, a flagship measure of the European strategy for LGBTIQ equality (see EUROPE 12600/23), should ensure the free movement of same-sex couples and their children in the EU. Many cannot travel or settle freely in some Member States because their parental status is not recognised (see EUROPE 12599/22).
The impact assessment suggests that the Commission could intervene with a Regulation that would cover “biological parenthood, parenthood by operation of law and domestic adoption”.
Although substantive law on parentage falls within the competence of the Member States, “the Union can adopt measures concerning family law with cross-border implications pursuant to Article 81(3) TFEU”, the Commission says.
The proposal would establish common conflict rules on parenthood and common rules on the recognition of judgments on parenthood. Such an instrument would be a first at international level.
The EU institution does not exclude the option of non-binding measures and indicates that it will also examine whether the problem could be solved by national authorities, through simple recommendations.
However, it admits that “the objectives of the initiative, by reasons of its scope and effects, would be better achieved at Union level”. It will then have to secure the support of all the Member States, which will be a delicate matter, given the strong opposition of certain governments when the EU ventures into this area.
The institution is aware of this. When presenting the LGBTIQ strategy, the Vice-President for Values and Transparency, Věra Jourová, assured that the Commission would propose “something negotiable and acceptable to all States”.
Non-recognition of parenthood may result in the loss of a parent’s rights to act as a legal representative of the child and the loss of the child’s rights to support payments, inheritance, custody or access by one of the parents.
It may therefore lead parents to start legal proceedings to have their parentage of the child recognised in another Member State (see other news), “with the significant time, costs and burden that this represents”, says the Commission.
Domestic litigation from the first to the third instance would cost between 5,000 and 10,000 euros in legal fees, plus another 4,000 to 8,000 euros to make a request for a preliminary ruling, not including travel and translation costs, the impact assessment details.
To see the impact assessment: https://bit.ly/3mMIvDe (Original version in French by Agathe Cherki)