European Commission: Important step towards enshrining same-sex parents’ rights

11-12-2022

Elena Ciascai

Europe and Human Rights Researcher

Global Human Rights Defence

  On December 7th, 2022, the European Commission adopted a proposal for a Regulation directed at harmonizing the rules of private international law relating to parenthood- Politico reports. As the European Commission wishes to ensure that parenthood rights are respected when people move within the EU, one of the key aspects of the proposal is the recognition of parenthood across all member states once established in an  MS, without any special procedure. 

   Regulations are legal acts of the European Union which become immediately enforceable as law in all the Member States simultaneously, without needing to be mediated into national law through implementing measures. Adopting a regulation on the matter of parenthood would solve the current issue of differing parenthood laws across EU , which create complications for families that cross borders, such as custody, or the right to legally represent a child when needed (Bennett, 2022). 

   Due to the sensitive and often  culturally-tied character of family law, the EU has a limited role in related matters and each member state has discretion in making its own rules of divorce, custody or guardianship (Citizens Information). However, it is in its competence to ensure that decisions made in one country can be implemented in another, as well as establishing jurisdiction in a case of conflict of laws. 

   The European Commission initiative particularly purports to protect the rights of same-sex parents and their children who need to move through the EU. This regulation would ensure that their family status would not be doubted in states which have not regulated same-sex marriage/partnership/parenthood, or even in countries such as Poland or Hungary which have passed anti-LGBTQIA+ laws in recent years. At the moment, families who find themselves in a cross-border legal hurdle due to lack of EU-level parenthood recognition, have to start administrative or judicial proceedings which are costly, time-consuming and do not guarantee acknowledgement of their family status. As declared by EU Commissioner Věra Jourová, who was involved in drafting the proposal, the absence of harmonized EU laws on the matter “puts children at risk, as they would not have guaranteed access to their rights, such as succession, maintenance or decisions on schooling and education” (2022, cited in Bennett, 2022). As such, the non-recognition of parenthood puts at risk the fundamental rights of children, including their right to an identity, to non-discrimination and to a private and family life (European Commission, 2022). 

   The EC proposal includes the creation of a European Certificate of Parenthood, in a harmonized template, which can be requested by children or legal representatives in order to prove family ties in all other Member States.

   It is important to highlight that this regulation would not harmonize substantive family law, which remains in the competence of the Member States (European Commission, 2022). This means that States would be only obliged to recognize parenthood that was already established in other MS, but they are not bound to establish same-sex parenthood within their jurisdiction. 

   The next steps for the adoption of the regulation are a consultation of the European Parliament, followed by the European Council, which will need to vote on it unanimously for it to be enforced.

References and further reading: 

Bennett, C. (2022, December 7). European Commission seeks to enshrine same-sex parents' rights. Politico. Retrieved December 11, 2022, from https://www.politico.eu/article/european-commission-try-to-enshrine-same-sex-parental-right/ 

Citizens Information. EU and family law. Citizensinformation.ie. Retrieved December 11, 2022, from https://www.citizensinformation.ie/en/birth_family_relationships/eu_and_family_law.html  

European Commission. (2022, December 7). Equality package: Commission proposes new rules for the recognition of parenthood between Member States. European Commission. Retrieved December 11, 2022, from https://ec.europa.eu/commission/presscorner/detail/en/ip_22_7509