European Commission step toward forcing states to recognize same-sex parenthood

Adobe Stock

· The European Commission has drafted an EU regulation that would make it compulsory for EU states to recognize each other's decisions establishing parenthood.

· As a result, Poland would be obliged to recognize the legal force of a document certifying same-sex parenthood.

· The EU regulations are directly applicable - their provisions do not require implementation into the national legal order.

· The draft may be the first step toward legal acceptance of both "same-sex marriages" and adoption by same-sex couples.

· The regulations also pave the way toward legal acceptance of surrogacy.

· The Ordo Iuris Institute has prepared an analysis of the draft. It also submitted an opinion to the European Commission and a memorandum to the Polish government.

READ THE ANALYSIS - LINK

In April 2021. The European Commission announced the start of work on a regulation on the recognition of parentage between member states. The draft's initial 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, under the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TfUE), substantive family law is the exclusive competence of member states, the European Commission planned a profound interference in the family law system by forcing member states to formally accept states of facts in which another country has recognized same-sex parenthood. 

In a draft EU regulation published in December 2022, the EC asserts that the document is intended to level the problems that come with moving to other EU countries in situations where parental rights granted in one country could be challenged in another. The regulation would apply to adoptive parents, meaning that it will also cover situations of same-sex couples, to whom some countries grant the right to adopt and others do not. Regardless of how the issue of institutionalization of such unions and the possibility of adoption of children by such couples is regulated by Poland, the regulation will enforce the acceptance of parenthood recognized in another EU country.

The regulations included in the draft will also affect the normalization of surrogacy - the purchase from a "surrogate mother" of a child to whom the buyers then obtain parental rights. Although surrogacy is currently not allowed in EU countries, once the regulation is adopted, changes to a member state's national laws will suffice to open the way to wider acceptance of the practice.

The announced regulation is also expected to include a solution for bypassing resistance from countries that do not accept the EU's attempts to interfere with domestic law. The impossibility of transcribing a foreign civil status record in a situation where the Polish legal order does not provide for the existence of the institution of "same-sex marriage" or parenthood of persons other than a woman (mother) and a man (father) is to be circumvented through the implementation of the so-called European certificate of origin of a child. Such an act would be a form of alternative to the birth certificate - a document with legal significance throughout the European Union.

The proposed regulation is yet another example of a violation of the treaty by overstepping the powers given to Union bodies by member states. Determining who can legally be a spouse and parent is a matter for national law. Attempting to adopt such solutions will constitute a blatant and most blatant overstepping of the Union's competence to date.

"The regulation is a step toward institutionalizing same-sex unions and granting such couples the right to adopt. For the time being, the European Union requires the recognition of same-sex unions formalized abroad, by accepting the recognized parentage of these individuals in another country - while it leaves domestic unions free. In the future, however, it may try to push that boundary further. We are dealing with a kind of test of the limits of member states' resistance to regulations that exceed the powers granted to the Union. The drafters themselves have already commented on several occasions that they expect opposition from countries such as Poland when voting in the Council, while adoption of this regulation requires unanimity. However, they will certainly look carefully at the strength of the arguments raised in order to try to undermine them in the future," - Anna Kubacka of the Ordo Iuris Center for International Law commented.