A step towards compulsory recognition of homoadoption and surrogacy. Draft EU regulation

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- In December 2023, the European Parliament voted in favour of the European Commission's proposal to regulate the mutual recognition of parenthood in EU Member States.

- As a result of the adoption of this draft legislation, Poland would be obliged to recognise the legal validity of a document certifying same-sex parenthood.

- The draft may constitute a first step towards the legal acceptance of both 'same-sex marriages' and adoption by same-sex couples.

- In addition, the regulations open the way towards the legal acceptance of surrogacy.

- The Ordo Iuris Institute has prepared an analysis on this topic.

In April 2021. the European Commission announced the start of work on a regulation on the recognition of parenthood between Member States. Already the initial draft indicated that the aim of the regulation would be to bring about the acceptance of adoptions carried out in another country by same-sex couples.

Despite the fact that, in light of 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 the Member States, the European Commission planned a profound interference in the family law system by forcing Member States to formally accept factual situations in which another state has recognised same-sex parenthood.

In a draft EU regulation, published in December 2022, the EC asserts that the document is intended to offset the problems associated 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, which means that it will also cover situations of same-sex couples to whom some states grant the right to adopt and others do not. Regardless of how the issue of institutionalisation 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 recognised in another EU state.

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

The announced regulation is also intended to include a solution to circumvent resistance from states that do not accept the EU's attempts to interfere in national law. The lack of possibility to transcribe a foreign civil status record in a situation where the Polish legal system 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 a certificate would be an alternative to the birth certificate - a document with legal significance throughout the European Union.

The proposed regulation is another example of a violation of the Treaty provisions by exceeding the powers conferred on Union bodies by the Member States. It is a matter for national law to determine who may lawfully be a spouse and parent. The attempt to adopt such solutions will constitute a blatant and most blatant overstepping of the Union's competences to date. In this regard, the Ordo Iuris Institute is monitoring the work on the regulation. According to the latest information, a vote is expected to take place in the Council of the European Union during the Belgian Presidency, which runs from January to June this year.

"The regulation is a step towards institutionalising 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 formalised abroad, by accepting the recognised parentage of these individuals in another country - while leaving domestic unions free. In the future, however, it may try to push this boundary further. What we have here is a kind of test of the limits of Member States' resistance to regulations that exceed the competences granted to the Union. The initiators themselves have already commented on several occasions that they expect opposition from states such as Poland during the vote in the Council, while the 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" - commented Anna Kubacka from Ordo Iuris International Law Center.