Project threatening to impose on Poland the acceptance of adoptions by same-sex couples

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- The European Parliament's Committee on Legal Affairs (JURI) has adopted an opinion on draft legislation to facilitate the recognition of parenthood in the European Union.

- The draft introduces an obligation for EU countries to mutually recognise judgments establishing parenthood.

- Adoption of the regulation would mean that Poland could be required to accept adoptions made in other countries by same-sex couples.

- In practice, the regulations would also open the way to allowing legal recognition of surrogacy.

- The document will be voted on by the European Parliament in December.

Project beyond EU competence

In April 2021, the European Commission announced the start of work on a revision of the regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in relation to the origin of the child and on the establishment of a European certificate of origin of the child. Already the initial draft indicated that the aim of the regulation would be to bring about the acceptance of adoptions made in another country by same-sex couples. At the beginning of December 2022. The European Commission released a draft regulation to regulate the mutual recognition of a child's origin by EU Member States. 

From the moment the EC announced its legislative initiative related to the regulation of cross-border parental situations, the Ordo Iuris Institute monitored the status of work on the project. Lawyers submitted their comments and participated in public consultations, pointing to the lack of competence of the EU to regulate this matter and the contradiction of the proposed regulations with the Polish constitutional order.The Institute also prepared a detailed analysis of the proposed document.At the invitation of the organisers of the Conference "Let's stop child trafficking", organised in the European Parliament in June this year, the discussion was attended by representatives of the Ordo Iuris Institute, who in their speech pointed out the threats to the sovereignty of Member States and that the project may aim directly at introducing changes in substantive family law, which remains outside the competence of the European Union. 

On 7 November, the Committee on Legal Affairs (JURI) adopted its opinion on the draft (14 votes in favour, 4 votes against, no abstentions). According to the Commission, the revision of the legislation aims to maintain but also strengthen the fundamental rights of both children and adults, as well as to increase legal certainty and reduce costs and bureaucracy. 

Interference with family law

The draft regulation provides for the recognition in all EU countries of parenthood established in one member state.MEPs stressed that the public policy clause, which is an exception to the application of these rules, must not lead to discrimination against the child, making it clear that it refers to "parents "of the same sex", and its application must be considered on a case-by-case basis and by way of exception.In addition, in cases where national authorities oppose recognition, established parenthood is to remain in force until all national and EU legal remedies have been exhausted and a final decision has been issued. It should be made clear that the public policy clause is an expression of state sovereignty and a tool to protect national legal order.In the draft regulation, this clause, which could protect the Polish constitutional order, is subject to a number of limitations which may make its application impossible in practice.Attention was also drawn to the issue of the European Parentage Certificate (EPC), which would be available in all official languages of the EU and would operate in both traditional and digital form, with a time limit of no more than two weeks for its preparation and issuance. 

Attention was also drawn to the issue of the European Parentage Certificate (EPC), which would be available in all official languages of the EU and would operate in both traditional and digital form, with a maximum of two weeks for drafting and issuing.The regulation would specify which court and which law applies in parentage disputes. 

MEP Maria-Manuel Leitao-Marques said that the proposal solves the problem of establishing parentage in individual Member States and that it aims to eliminate the situation where, from a legal point of view, a child would lose his or her parents if they enter another Member State. Furthermore, it considered unacceptable the practice of not recognising parent-child relationships in 'LGBTIQ+ families' in some Member States. 

- The European Union shall act only within the limits of the competences conferred on it by the Member States in the Treaties in order to achieve the objectives set out therein. At the same time, any competence not conferred on the Union in the Treaties remains with the Member States. Family law falls within the competence of the Member States, and any pressure on the States to create the legal possibility to formalise same-sex unions, whether in the form of civil partnerships or by referring to the concept of marriage or by granting marriage privileges to such unions, may constitute an unauthorised attempt to interfere in the family law of the Member States,' points out Dr Przemysław Kulawiński, an analyst at Ordo Iuris.

The regulations included in the draft will also have an impact on the normalisation of surrogacy - the purchase from a 'surrogate mother' of a child to whom the purchasers then obtain parental rights. Although surrogacy is not currently allowed in EU countries, once this regulation is adopted, changes to the national laws of one Member State will be sufficient to open the way for wider acceptance of surrogacy. 

State sovereignty at risk

The European Parliament will vote on the project in December. Once it has been completed, the final decision will rest with member state delegates. Unanimity will be required for the adoption of this regulation. A veto by at least one EU member state will mean rejection of the draft.