The law of legal parenthood does not join up internationally. This, however, may change for EU member states (with the possible exception of Denmark) if the Council, after consulting the European Parliament, passes a proposed regulation.
The European Commission has today produced a proposal for a regulation which seeks to provide legal certainty in the cross border establishment and recognition of legal parenthood, including in cases of surrogacy arrangements and domestic adoptions. The genesis for the proposal can be traced back to Ursula von der Leyen’s State of the Union speech in 2020 in which she said “if you are a parent in one country you are a parent in every country”. This is not necessarily the case today for all children, but the draft proposal for the regulation is very detailed (65 pages) and includes rules on jurisdiction, uniform applicable law rules and cross border recognition rules in cases of cross border parenthood.
It will be seen whether there is sufficient support from the member states at Council given that there are varying different national laws and approaches to same sex parenthood, surrogacy and domestic adoptions – more specifically – who is eligible to become a legal parent in those circumstances. Time will tell, but this is a very exciting and timely development given the report of the Experts’ Group on the Parentage/Surrogacy Project of the Hague Conference on Private International Law and the recommendation around a possible convention on legal parentage. You can find the report here.
The UK and other non-EU member states could seek inspiration from the proposed rules. It is generally in the best interests of the children to ensure there is cross border legal continuity in the regulation of child/parent relationships.
The objective of the proposal is to strengthen the protection of the fundamental rights and other rights of children in cross-border situations, including their right to an identity , to non-discrimination and to a private and family life, and to succession and maintenance rights in another Member State, taking the best interests of the child as a primary consideration