Commission proposes EU-wide parental recognition to protect children of rainbow families

If you are a parent in one EU country, you should be recognised as a parent in all EU countries, the European Commission said on Wednesday proposing new legislation to protect the rights of children of rainbow families.

Currently, only some EU countries recognise legal family ties between children and their non-biological LGBTIQ parents, mostly through adoption. And only Austria, Belgium, Denmark, Finland, France, Malta, Ireland, the Netherlands, Portugal, Slovenia, Spain and Sweden allow joint parenthood for same-sex (mostly lesbian) couples from birth.

Disparities among EU member states have consequences for the rights of children, who may ‘lose’ a parent from a legal point of view when they move for holiday or residence to another EU country.

In these cases, families often have to launch legal actions to defend their rights. These are costly and time-consuming procedures, with uncertain results. These difficulties can also dissuade rainbow families from going to live or invest in other EU states, EU justice commissioner Didier Reynders said presenting the proposal.

Risk of statelessness

A prominent case years ago concerned a girl born through in vitro fertilisation (IVF) in Spain into a family of two mums, an Irish and a Polish. Both mothers could be named on the Spanish birth certificate, but this was not recognised for transcription in Ireland and was also refused by Poland, which does not recognise same-sex couples. As a result, the child could not get a passport. Although Spain allows children born in the country who would otherwise be stateless to acquire nationality at birth, it took months to go through the procedure and during this period the child was left without any nationality.

In a similar situation, last year the European Court of Justice ordered Bulgaria to issue an identity card or passport to a child born in Spain from a lesbian couple originally from Bulgaria and Gibraltar. Once again, the birth certificate issued in Spain was not recognised in Bulgaria and the child was at risk of statelessness.

Many other children face administrative difficulties because one of their parents is not legally recognised, even just when going on holidays to another EU country.

“There are an estimated 2 million children who can see their legal relationship with their parents denied in another member state. This could be because the family has moved to a member state which will not recognise the parenthood previously established by the member state of origin, or at least not for the two parents, or because the child was born in a member state where the parenthood was established but then the family returned to its own member state, where the parenthood is not recognised. This situation is not acceptable for the Commission. This is why we are now proposing this regulation,” Commissioner Reynders said.

Rights derived from national law

The European Court of Justice has already ruled that EU countries must recognise family ties that have been established elsewhere in the EU when rainbow families move within the bloc. But this is limited to the right of entry, residence and non-discrimination.

The new proposal now aims to cover all other rights, which derive from national law, for instance with regard to succession, maintenance, custody, or the right of parents to act as legal representative of the child for schooling or medical treatment.

European certificate of parenthood

The Commission argues that parenthood established in an EU country should be recognised in all member states without any special procedure.

Included in the proposal is therefore the possibility to request a certificate of parenthood that children or their legal representatives will have the right to obtain where parenthood was established and that will be recognised across the EU. The certificate will have a common template and be issued in all EU official languages to “significantly reduce translation costs for families”.

Children born outside the EU

The proposal covers all children whose parental relationship has been established in an EU member state and who are in a “cross-border situation”, irrespective of how the child was conceived or born, the Commission says.

It does not cover parenthood established in non-EU countries, such as the UK. The recognition of these parental relationships will remain subject to the legislation of each EU member state.

Commissioner Raynders however explained that children born outside the EU might be covered by new rules if parenthood is registered through an EU embassy or consulate.

“If there is through an embassy or a consulate in a third country a national recognition of a member state… of course we have to protect the right of the child. We are working on a simple rule: if there is a recognition of rights in a member state, there must be a recognition in others,” he explained.

Family law

EU governments will have to approve new rules by unanimity after consulting the European Parliament.

The proposal is likely to face opposition from countries that do not recognise same-sex couples, especially considering that the definition of family and parenthood is governed by national law. The Commission, however, can propose legislation in areas that involve moving across EU borders without affecting national law.

Executive Director of LGBTI organisation ILGA-Europe, Evelyne Paradis, said: “Ensuring that children have their parents fully recognised when moving across the EU is an essential condition for their best interests and their fundamental rights. This proposed law is doing so, without impeding on the competence of member states to define a family and establish parenthood under their jurisprudence.”

Commissioner Raynders said the negotiations with EU governments will be based on the idea that the proposal “has the right of the child at its heart”.

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