On 7th November 2023, the European Parliamentary commission on legal affairs voted for a proposed rule initiated by the European Commission concerning the recognition of filiation certificates between European Union member states.
The Commission, during its consultation of associations and citizens, indicated that the initiative was not intended to harmonise national legislations regarding the establishment of parenthood. However, it could seriously encroach on their national sovereignty for the establishment of filiation and on children’s rights. All the more so since the proposal goes so far as to establish a European filiation certificate.
During the legal affairs commission, an amendment worsened the text by maintaining that member states could not recognise such filiation if it is incompatible with law and order but only in exceptional circumstances, following a case by case examination.
In March 2023, the French Senate issued a substantiated recommendation criticising the proposal on several counts. The recommendation underlines the ambiguity regarding its objective: “Is it concerned with “filiation”, i.e. a clear legal concept establishing the link between a child and its parents, as indicated in the French version of the text, or, according to the English version, is it concerned with “parenthood”, a less precise and undefined concept? Additionally, the authors of the recommendation recall the absence of consensus regarding the establishment of filiation within the EU. The senators also point out that the French Government rejects any automatic recognition of filiations resulting from surrogate motherhood conducted in another state, whether or not an EU member state.
In 2021, in response to the consultation by the European Commission, Alliance VITA issued an advice against the systemic recognition of filiations within the EU by maintaining the principle of subsidiarity of the States on the subject. In an analytical memorandum published in January 2023 intended for the members of parliament and of the Commission, Alliance VITA analysed the manner in which this proposal infringes the attributions established by the European Union Treaty and French public order regarding surrogate motherhood. Indeed, the French penal code penalises filiation infringements resulting from substitution motherhood.
Even if the text were to be approved during a plenary session next December, in order for such a ruling to be adopted, would require a unanimous vote by the European Council (art. 81-3- European Union Operating Treaty). Several States have already voiced their disagreement.
As already asserted by Alliance VITA, the pretext of freedom of movement within the European Union must not mask the interference which this proposed ruling would constitute for the States regarding the filiation and the safeguard of children’s rights.
Further reading: Analytical memorandum