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"Birth certificate" - EU idea to bring same-sex parenthood into the legal system

Published: 12.12.2022

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· The European Commission has released a draft regulation aimed at regulating the mutual recognition of parenthood by EU member states.

· The issue primarily concerns same-sex couples, to whom some countries grant the right to adoption. In countries where such adoption is not possible, their parentage may be questioned.

· Among other things, the EC is proposing the introduction of a certificate of parenthood, which all EU member states will have to recognize. A similar solution has been advocated by the Hague Conference.

· EU regulations are directly applicable, which means that Poland will have to recognize the solutions thus introduced. This will entail legal acceptance of same-sex parenthood.

· The adoption of this legislation will mean an extremely profound interference in the Polish legal system.

· The Ordo Iuris Institute will submit its opinion on the draft to the European Commission and a memorandum to the Polish government in the coming days.

April 2021. The European Commission announced the start of work on a regulation on the recognition of parenthood between member states. The document's preliminary assumptions already indicated that the regulation would aim to bring about the acceptance of adoptions made in another country by same-sex couples. Despite the fact that on the basis of the EU Treaties, substantive family law is the exclusive competence of member states, the European Commission planned a profound interference in the system of family law, by forcing member states to formally accept states of facts in which another country has recognized same-sex parenthood. A draft regulation published in early December 2022 confirms these concerns.

The European Commission proposes the introduction of an EU "certificate of parenthood," which the regulation would oblige all member states to recognize. In this way, practically without having to change domestic law, countries would be forced to recognize the existence of a formula for parenting two people of the same sex. Crucially, such a certificate is to have official force and will not require transposition into a national document - removing the "problem" posed, for example, by Poland, which is the inability to transcribe a birth certificate showing two mothers or two fathers.

The idea of creating a cross-border-recognized "birth certificate" has emerged not only in Brussels and not only for the needs of same-sex couples. The Hague Conference has been debating issues related to the legal regulation of surrogacy in practice for years, and in the course of its recent work, its Expert Group also put forward the idea of implementing an "international birth certificate."

The Ordo Iuris Institute monitors both the work of the Hague Conference and the EU, reacting on an ongoing basis and providing its analysis and memoranda to the relevant actors. In the case of the EU, the form of defense against this unauthorized interference in family law should be a firm opposition by member states in the Council. In the coming days, the Institute will provide the European Commission with its comprehensive opinion on the draft, and will also provide the Polish government and Euro-parliamentarians with a memorandum relating to the proposed regulation.

- The proposed regulation is another example of a violation of treaty provisions by exceeding the powers given to Union bodies by member states. Determining who can legally be a spouse and parent is a matter for national law. An attempt to adopt such solutions will constitute a blatant and, to date, the clearest overstepping of the Union's powers," notes Anna Kubacka, an analyst at the Ordo Iuris International Law Center.

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