EUROPEAN COMMISSION

Brussels, 7.12.2022

SWD(2022) 391 final

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT REPORT

Accompanying the document

Proposal for a Council Regulation

on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood

{COM(2022) 695 final} - {SEC(2022) 432 final} - {SWD(2022) 390 final} - {SWD(2022) 392 final}

Table of contents

1.Introduction: Political and legal context

2.Problem Definition

3.Why should the EU act?

4.Objectives: What is to be achieved?

5.What are the available policy options?

6.What are the impacts of the policy options?

7.How do the options compare?

8.Preferred option

9.How will actual impacts be monitored and evaluated?

Annex 1: Procedural information

Annex 2: Stakeholder consultation (Synopsis report)

Annex 3: Who is affected and how?

Annex 4: Analytical methods

Annex 5: Policy Options 2a and 2b

ANNEX 6: Fees for Recognition Procedures

Annex 7: Examples of Problems and Their Impact

ANNEX 8: Potential Evaluation Indicators

Glossary

Throughout the report, wherever a term is marked by *, reader is invited to consult this Glossary for an explanation of the relevant term.

1.1.    Introduction: Political and legal context

“If you are parent in one country, you are parent in every country.” 

… said Commission President von der Leyen in her State of the Union speech in 2020 14 . With this statement, she referred to the need to ensure that parenthood established in one Member State be recognized in all other Member States.

Parenthood (or filiation) is a civil status that forms a constituent element of a child’s identity. Parenthood of a child, understood here as the child-parent relationship established in law, provides the legal proof of an existing family relationship between children and their parents. Numerous rights and obligations vis-à-vis the child’s parents, public authorities and others flow directly from parenthood or are related to it, for example parental responsibility, maintenance, succession, or nationality of the child (where in national law nationality is based on ius sanguinis 15 ). The preservation of the parent-child link in cross‑border situations is thus essential for protecting the fundamental rights of children and their families (including the right for respect of private and family life, right to non‑discrimination and rights of the child, such as the protection of the best interests of children and the right to maintain on a regular basis a personal relationship and direct contact with their parents) 16 .

However, as national approaches with respect to the determination of parenthood and civil status vary among Member States, each Member State determines a child’s parenthood differently and, in addition, may not recognize parenthood legally established in another Member State for all purposes. As a result, some families may encounter problems in cross‑border context and children end up in precarious situations where they lose, from a legal viewpoint, one parent (sometimes both) in other Member States. (The reasons for the non‑recognition of parenthood and consequences thereof are detailed in Section 2.)

The “Parenthood initiative”* introduced below would thus be taken in this context and with the aim to protect children and their fundamental rights in cross‑border situations and to ensure continuity of parenthood across borders in the EU. It is based on the premise that no children should be disadvantaged or suffer harm because of the circumstances of their conception or birth. This initiative would not affect the rights that a child derives from Union law, in particular the rights that a child enjoys under Union law on free movement, including Directive 2004/38/EC.

2.1.1.1    Legal context 

National legal context

As families are increasingly mobile 17 , Member States frequently have to deal with situations where parenthood has an international element, for instance children or their parents have foreign nationality, the birth happened abroad or parenthood was established based on the national law of another State. In situations like these, Member States apply their private international law (PIL)* rules and rules on the recognition of parenthood. The Member States’ PIL rules* and approaches to the recognition of parenthood established abroad differ, which complicates the recognition of parenthood between Member States. (It must be noted though that children of EU citizens enjoy certain rights derived from EU law, in particular the acquis on EU citizenship and free movement, irrespective of whether their parenthood has been formally recognised in a Member State 18 ).

In addition, considerable differences exist in the national family law of Member States with respect to family concepts. Family matters are culturally sensitive issues that may touch on the national identity of Member States and are influenced by different legal traditions and societal backgrounds. Under the EU Treaties, substantive law on family matters and the legal status of persons (including parenthood) falls within the competence of Member States. Therefore, in a comparable factual situation, Member States may establish, under their national law, parenthood differently 19 and by using differing procedures 20 .

Currently, various public authorities are involved in establishing and subsequent registering of parenthood at national level 21 . Once parenthood has been established in one Member State (for example, by operation of law after birth), parenthood is generally recorded in a civil or population register. An administrative document containing the information on parenthood - most frequently a birth certificate - is typically provided as the evidence of parenthood. Birth certificates serve as a proof that the birth of a child has been registered and often include information about and evidence of the child's family ties and other information, such as the place of birth. Birth certificates are often required in a variety of administrative and professional procedures or procedures to establish a child’s nationality. Besides birth certificates, other documents may be issued recording the parenthood of a child 22 . The parenthood of a child may also be established by a court decision, for instance in cases of domestic adoptions or where parenthood has been disputed. Even where parenthood is established by a court decision, a birth certificate is usually subsequently issued. The difference between court decisions and authentic instruments and whether they establish parenthood or only provide evidence thereof, is also relevant where these documents are brought for recognition in another Member State 23 .

International legal context

Problems with the recognition of parenthood are not specific to the EU. As the movement of families takes on a global dimension, the need to ensure that the parenthood of a child is recognised in cross-border settings is also acknowledged at international level.

For example, the Hague Conference on Private International Law (HCCH) is currently undertaking work on the PIL issues surrounding the parenthood of children (HCCH Parentage/Surrogacy Project*). This work could eventually lead in the long term to the adoption of an international convention on legal parentage and of a separate optional protocol on legal parentage established as a result of international surrogacy arrangements (ISAs). However, as expounded below (Section 3), this work at the international level does not in principle eliminate the need for an action concerning recognition of parenthood at EU level.

Other international instruments related to children 24  either do not deal with cross‑border aspects of parenthood, their scope as regards parenthood matters is limited, or only a few Member States are parties to such instruments. With respect to intercountry adoptions in particular, the HCCH 1993 Intercountry Adoption Convention exists and seeks to ensure that intercountry adoptions are made in the best interests of children and with respect for their fundamental rights 25 . Moreover, in the past some Member States concluded with other Member States or with third countries bilateral and multilateral agreements related to parenthood matters, but their scope is also limited or the agreements only cover a few Member States 26 .

All Members States are obliged to protect the rights of children and their best interests anchored in the United Nations Convention on the Rights of the Child (“UNCRC”) and other international instruments, such as the European Convention on Human Rights (“ECHR”) (see Article 8 ECHR and Articles 2, 3(1), 7(1) and 8(1) UNCRC 27 ). The European Court of Human Rights has been seized a number of times with complaints concerning the recognition of parenthood, mostly claiming a violation of Article 8 of the ECHR, the right to respect for private and family life (including the right to identity). Article 8 ECHR does not merely compel States to abstain from arbitrary interference with the exercise of the right to family life; it also imposes positive obligations on them, such as when States determine in their domestic legal system the regime applicable to certain family ties, they “must act in a manner calculated to allow those concerned to lead a normal family life” 28 . Based on these human rights considerations, States’ margin of appreciation in cases of parenthood recognition is limited, in particular under the ECtHR case law on the recognition of parenthood of children after foreign adoptions 29  or born through surrogacy arrangements abroad 30 .

However, despite the existence of several international legal instruments concerning children’s rights and civil status, there are currently no international instruments ensuring the recognition of parenthood between countries.

Legal context at the EU level

Whilst substantive family law on parenthood falls within the competence of Member States, the EU can adopt measures concerning family law with cross-border implications pursuant to Article 81(3) TFEU. These measures can include the adoption of common rules of jurisdiction, applicable law and procedures for the recognition of judgments and authentic instruments* (such as birth certificates) issued in other Member States. Currently, there is no EU legislation on the recognition of parenthood. As a result, not only the establishment of parenthood is currently governed by the national law of each Member State but so are also all cross-border aspects of parenthood (PIL rules*, such as law applicable to parenthood, jurisdiction rules and rules for recognition of parenthood).

The existing EU law instruments, which are of direct relevance for children in cross‑border situations (the Brussels IIb Regulation, the Maintenance Regulation and the Succession Regulation), cover the recognition of judgments and authentic instruments in several areas of family law (for instance maintenance or parental responsibility) and also on succession; however, they do not deal with parenthood as such 31 . Since parenthood is left out of the scope of these instruments, in situations where a (“incidental”) question related to the determination of parenthood arises in the context of proceedings covered by existing EU instruments, national law on parenthood with cross-border elements is applied. Therefore, EU legislation on parenthood with cross‑border implications would not only help with the recognition of parenthood in the EU but would also complete the current body of EU legislation on family matters with cross-border implications. In addition to the above civil-law instruments, the Regulation on Public Documents addresses the authenticity of public documents in certain areas, including parenthood, but does not cover the recognition of the contents or effects of such public documents 32 . 

The protection and promotion of the rights of the child is a core objective of the European Union (Article 3(3) and 3(5) TEU). It is enshrined in the Charter of Fundamental Rights of the European Union (“Charter”), which guarantees, in the implementation of EU law, the protection of the fundamental rights of families and children. These rights include, regardless of the age of the child, the right to respect for private and family life (Article 7 of the Charter) and to non-discrimination (Article 21 of the Charter). The Charter also protects the rights of children (Article 24) and recognises that children have the right to maintain a regular and direct relationship with both parents, if it is according to their best interests. The best interests of the child, as laid down in Article 24(2) of the Charter, is one of the main principles of the EU legal order and was recognised by the CJEU in several cases. The close links between these rights were recently confirmed by the CJEU in the V.M.A. case, where the CJEU held that it would be contrary to children’s rights for children to be deprived of the relationship with their parents when exercising their free movement rights.

The CJEU held in V.M.A. that Member States are obliged to recognise parenthood for the purposes of rights that the child derives from EU law, including the right of the child to exercise free movement with each of its parents 33 . The notion of “rights derived from EU law”, explained in fn. 33, is used in this impact assessment to delineate situations already covered by the CJEU’s case law. In V.M.A., the CJEU took an important step to ensure that the free movement of children with their families is not hindered. However, the judgment also demonstrates the limits of EU law as it currently stands since it does not oblige Member States to recognise parenthood of a child for other purposes, namely for rights that are not derived from EU law 34 . Therefore, while the CJEU judgments on free movement of persons, and partly on EU citizenship, imply obligations irrespective of formal recognition of parenthood in the host Member State for some purposes 35 , Member States still apply their national law to recognise parenthood for other purposes. These other purposes include the legal status of persons and the rights derived from parenthood under Member States’ law, for example succession and maintenance rights. Measures are thus still needed to facilitate the recognition of parenthood for these other purposes.

Simultaneously, the CJEU noted that such obligation does not undermine national identity of Member States or pose a threat to their public policy 36 .

Another case, K.S. 37 , factually and legally similar to V.M.A., was brought before the CJEU in 2021. The recurring nature of these existing problems with parenthood recognition is also shown by the ECtHR case law 38 , by petitions addressed to the European Parliament and by citizen letters addressed to the Commission 39 . Also the Open Public Consultation (“OPC”) demonstrates that improvements are still possible in the implementation of the legal obligations concerning the protection of children’s rights stemming from the CJEU and ECtHR case law. As these binding obligations do not need to be implemented in national statutory law and often are not, the application of the CJEU and ECtHR case law in individual cases is often left to national courts, which results in practical difficulties as the case law requires a certain outcome without specifying how recognition should be achieved. As a result, while national authorities, in particular courts must follow the obligations laid down in the case law, they struggle to come to a decision that balances the best interests of the child and the policy goals of their Member State. The reasoning applied by national courts to strike such balance in their decisions is therefore highly unpredictable 40 , which negatively affects legal certainty for cross-border families and often requires that families have to appeal before national courts against an initial refusal of parenthood recognition 41 . 

2.2.1.2    Political and policy context 

At EU level, the recognition of civil status has been on the Commission’s agenda for some years. Already a 2010 Green Paper 42 discussed whether it would be appropriate to adopt measures on the recognition of civil status records, including parenthood, issued in another Member State.

More recently, following the Commission President’s announcement in her 2020 State of the Union speech of the Commission’s intention to propose measures to improve the recognition of parenthood among Member States, this commitment was confirmed in the EU Strategy on the rights of the child 43 and the LGBTIQ Equality Strategy 2020‑2025 44 . The President’s political pledge for an initiative on the recognition of parenthood between Member States was also included in the 2022 Commission Work Programme under the policy ambition of A New Push for European Democracy 45 .

The Commission’s commitment to adopt a proposal on the mutual recognition of parenthood was welcomed by the European Parliament in its resolutions of 14 September 2021 46 and of 5 April 2022 47 . This is consistent with the long-term support by Parliament for an action in this area: e.g. in 2017, the Parliament adopted a resolution on cross‑border aspects of adoption, highlighting a “clear need for European legislation to provide for the automatic cross-border recognition of domestic adoption orders” 48 . Preliminary views on the Parenthood initiative* were exchanged between Member States at the Justice and Home Affairs Council on 4 February 2022 and at a dedicated technical meeting organised by the Commission as part of its consultation strategy on the initiative 49 .

2.2.    Problem Definition

Families are increasingly mobile as they move and travel between Member States 50 . Yet, given the differences in Member States’ laws, families may face difficulties in having the parenthood of their children recognised when crossing borders within the EU. Through citizens’ complaints, petitions to the European Parliament 51 and judicial proceedings 52 , the attention of the Commission has been drawn to the precarious situation that families face in these circumstances. Non‑recognition in a Member State of the parenthood established in another Member State (where recognition is required for children to benefit from rights other than those derived from EU law 53 ) can have significant adverse consequences for children and their families when moving to another Member State or returning to their Member State of origin. Non-recognition of parenthood may have a negative impact not only on children’s rights, such as right to an identity, status and nationality but may also have derived legal, economic and psychological consequences for children and their families. 

The CJEU partially addressed the recognition of parenthood between Member States in the V.M.A. case (see Box 1). However, as this CJEU case law only obliges parenthood to be recognised for some purposes, families will continue to face difficulties in cross-border situations for other purposes, such as civil status and rights derived from that status (succession, maintenance rights, parental representation rights etc.). Therefore, where a reference is made in this report to the problem of the non‑recognition of parenthood between Member States, this refers to non‑recognition for purposes other than the rights derived from EU law*, including the recognition of civil status and the rights derived from that status under national law, such as maintenance or succession rights, parental representation rights etc.

The drivers (or causes) of the problem with recognition of parenthood are threefold: (i) differences in Member States’ laws on the establishment of parenthood (substantive rules and applicable law rules); (ii) differences in Member States’ rules on the recognition of parenthood established in another Member State 54 ; and (iii) the lack of any EU or international rules on the recognition of parenthood that would have a wide material scope and apply to all Member States. These problem drivers together lead to situations in which families may face situations where their parenthood legally established in one Member State is not recognised in another Member State.

The main issue to be addressed is thus the non-recognition of parenthood in the EU 55 . 

The need for the recognition of parenthood may arise in the presence of a cross‑border element in the family, in particular where children and their family previously resident in one Member State move or intend to move to another Member State, or return to their Member State of origin, or simply travel 56  within the EU. In addition, recognition of parenthood may be necessary in situations where a family resident in one Member State applies for documentation in the Member State of the nationality of the child 57 .

In the majority of Member States, if formal recognition of parenthood is needed, it is entrusted to administrative authorities, such as civil registrars 58 . Most Member States reported that the process and costs for the recognition of parenthood before the administrative authorities are not burdensome as such 59 . However, should recognition be refused for any reason, the family may need to seek legal remedies, meaning that they need to appeal against the decision of the administrative authority before another administrative authority or directly before the national courts of the Member State where recognition is sought. In some cases, they may have to go through several court instances, even before constitutional courts, involve human rights defenders or finally file a complaint with the ECtHR. All these legal procedures require legal counselling and are burdensome, costly and lengthy 60 . In the meantime, the rights of children are suspended and the outcome of the proceedings is uncertain.

These lengthy, costly, and burdensome procedures following the initial non‑recognition of parenthood may result in situations where either:

-the parenthood of a child established abroad is eventually recognised; or

-the parenthood of a child is eventually not recognised, despite the effort, costs, and burden of the litigation process.

Given the unpredictable outcome of these lengthy, costly, and burdensome court proceedings, families may decide that they cannot afford initiating them in the first place and the parenthood of the child will thus remain not recognised 61 . 

Because many rights and obligations are derived from the parenthood status, the recognition of parenthood in cross-border situations, particularly where a family moves to another Member State or returns to its Member State of origin, ensures that the child enjoys the same rights under the national law of that Member State as other children residing in that Member State 62 . Families aware of the parenthood recognition problems are faced with legal uncertainty and may fear that the parenthood of their child and rights derived from it might not be recognised in some Member States. As a result, they may be deterred from moving or travelling to these Member States, thereby possibly foregoing personal and professional opportunities. This deterrent effect on the right to free movement, although its size cannot be quantified exactly, is borne out by the OPC results 63 . 

The problem tree depicted below in Figure 1 shows how the problem of non-recognition of parenthood arises from the three key problem drivers (further developed in Section 2.3 below) and leads to various consequences (detailed in Section 2.2 below).

Figure 1: Problem Tree

2.3.2.1    What is the problem?

The problem addressed in this report is the non-recognition in a Member State of parenthood established in another Member State. It may result in one of two outcomes: (i) after initial non-recognition of parenthood, parenthood is eventually recognised but only after lengthy, costly and burdensome procedures; and (ii) parenthood is not recognised in the end (possibly despite lengthy, costly and burdensome procedures). This second outcome is more serious, since it entails that the child is placed in the undesirable state of a limping parenthood 64 in another Member State for an indeterminate period. Under both scenarios, families face legal uncertainty as to whether or not their child’s parenthood will be recognised in another Member State.

2.4.2.2    What are the consequences of the problem? 

Non-recognition in a Member State of the parenthood established in another Member State can have significant adverse consequences for children and their families. These consequences may be temporary (until the parenthood is recognised at a later stage, e.g. subsequent to a court decision) or lasting.

·Interference with children’s (fundamental) rights

Where authorities in one Member State refuse to recognise parenthood established in another Member State, the child’s rights derived from parenthood may be denied. Non‑recognition of parenthood can lead to either of the parents losing parental rights to act as the legal representative of the child in matters such as enrolment in school, various administrative procedures, opening of a bank account on behalf of the child, giving consent to medical treatment or authorising the child to travel alone 65 . As a result of the non‑recognition of parenthood, the child may lose maintenance entitlements, succession rights, or the custody and visiting rights by the parent(s) whose parenthood has not been recognised. The OPC confirms the existence of such consequences resulting from the non‑recognition of parenthood 66 .

Non-recognition of a child’s parenthood also has negative consequences on the child’s fundamental rights, in particular the rights to respect for private and family life, and to non‑discrimination 67 . Given that, under the Charter, the ECHR and the UNCRC, children have a right to have a relationship with each of the persons with whom they have an effective family life 68 , it is contrary to the fundamental rights guaranteed under Articles 7 and 24 of the Charter to deprive them of the relationship with one of their parents because their parenthood was established in another Member State 69 . Indeed, as a general rule, the best interests of children entail maintaining family unity 70 , as well as their right to maintain on a regular basis a personal relationship and direct contact with both their parents, unless that is contrary to their interests. In addition, severing the parenthood links of children with their parents in cross-border situations may also have a negative impact on the child’s right to an identity 71 , including on its nationality (when in national law nationality is based on ius sanguinis) 72  and – in spite of the clear CJEU case law - a surname 73 . 74

·Repercussions on the nationality of children and statelessness

The attribution of nationality falls within the competence of the Member States. Where parenthood of children is not recognised, they may face hurdles in obtaining the nationality of the parent whose parenthood has not been recognised 75 . This may prevent the child from having access to the nationality of a Member State and thus, among others, to EU citizenship and rights attached to it. In some cases, the impossibility to determine the child’s nationality can render children born in the EU (temporarily) stateless or place them at risk of statelessness 76 . While cases of statelessness are rare 77 , the impact of statelessness can be severe.

·Denial of rights related to education, healthcare, social security and taxation

Where authorities in one Member State refuse to recognise parenthood established in another Member State, this may also have consequences for the child under the national law of the Member State in which recognition is sought. Where a family lacks necessary documents as a result of parenthood non‑recognition, a parent may be refused access to medical information about the child or even the right to be present in a hospital where a child is hospitalised. The child may also lose the rights associated with having a legal relationship with a sibling (for example, the right to be enrolled in the same school). In addition, the OPC results 78 show that where parenthood was not recognised, some families faced problems with the access to family- or child- related social or tax advantages 79 . Nevertheless, the EU acquis grants equal treatment to EU citizens in free movement and their family members with respect to these advantages 80 .

·Impact on exercising the right to free movement

While the consultation activities showed that the right to free movement of families in the EU is one of the most commonly compromised rights in the cases of non-recognition of parenthood 81 , a positive trend can be expected following the recent V.M.A. judgment. In this and other cases concerning free movement, the CJEU specified several rights that EU citizens must be allowed to exercise, irrespective of any recognition of the underlying status 82 . While the CJEU case law provides for an obligation to respect these rights, it leaves the means to implement those obligations to Member States. Therefore, resorting to a national court to ensure that these rights under EU law are respected may still be necessary even with respect to the rights derived from EU law 83 . 

More importantly, the lack of parenthood recognition (for purposes other than the exercise of the rights derived from EU law*) may deter families with children from exercising their right to free movement within the EU. Failure to recognise parenthood by a Member State and to grant children and their families rights derived from such status can create a serious obstacle to family life in that country. These circumstances can no doubt deter a family from moving to that Member State and thus deter the exercise of the right to free movement. As families are dissuaded from moving or returning to Member States where their child-parent link may not be preserved 84 , the number of requests for parenthood recognition and thus the number of cases that reach the courts in the EU are considerably lower than the actual scale of the problems with the recognition of parenthood 85 . It can thus be reasonably assumed that for every case concerning non‑recognition of parenthood that reaches a court, there is a multiplicity of similar cases where court action is not brought.

All the above problem consequences mostly affect, but are not limited to, children and families when they return or take up residence in a Member State that does not recognise their legal relationship and that simultaneously requires formal recognition of parenthood before granting some or all of the rights under national law – as illustrated in Figure 2.

Figure 2: Number of Member States where formal recognition of parenthood established in another MS is a prerequisite for obtaining certain rights (Source: Study by an external contractor*)

·Psychological effects

The psychological importance of parenthood status being recognised from a legal viewpoint should not be underestimated. Non-recognition of a family relationship can cause serious inconvenience for the family at administrative, professional and private levels and pose serious obstacles in daily life. The uncertainty about the status may in particular give rise to doubts as to the person’s identity or the accuracy of his or her declarations. Such “limping parenthood”* resulting from non-recognition of parenthood can also have a psychological dimension, as children and their families faced with parenthood recognition problems are likely to experience emotional distress. Legal uncertainty concerning parenthood may also have a negative impact on the emotional and psychological wellbeing of children and of other member of their families.

·Costs, time and burden of the recognition procedures 

The costs and length of a procedure for recognising parenthood vary significantly. All estimates in this section rely on the methodology described in Annex 4 and are based on several assumptions detailed Figure 8. The initial recognition procedure typically takes place before administrative authorities of a Member State and lasts in most cases (80%) up to 6 months 86 . The costs of such administrative proceedings borne by families vary greatly and may include: i) administrative fees 87 ; ii) other administrative costs, such as those for translation of documents, postal costs and costs for further supporting documents and evidence; and iii) costs for legal representation. The average overall costs for recognition procedures*, including fees and other administrative costs, was estimated at EUR 280 to EUR 475 per case on average in non‑problematic cases where parenthood is recognised without further difficulty. However, the procedure for recognising parenthood before civil registries may only be the first step in the whole recognition procedure.

In problematic cases where recognition is initially refused, non-recognition of parenthood may lead a family to appeal the decision on the matter (whether before administrative authorities or before courts). This may result in a long legal battle before several administrative or judicial instances with uncertain results. These additional proceedings involve further considerable time, costs and burden for citizens. The length of such court proceedings seems to vary, ranging from a few (2-4) months in the easiest cases to up to 1-3 years, with outliers of up to 5 years 88 . During these periods, the rights of the children affected are in a legal limbo. In cases in which parenthood recognition is initially refused and additional procedures are required, the overall costs for recognition procedures* and hassle costs* borne by families increase drastically. The major costs for recognition procedures* lie with legal representation, which is necessary in complex cases, sometimes not only at the judicial stage but already at the administrative stage of a recognition procedure 89 . The additional costs may include, in particular: i) court fees 90 ; ii) other costs, such as those for translations and evidence (e.g. DNA tests and expert opinions). The overall costs for recognition procedures* in problematic cases (both at the administrative and judicial stage) amount on average to between EUR 2 916 and EUR 8 795 per case, as quantified in Annex 4 based on several assumptions 91 . These costs for recognition procedures are thus on average almost 16 times higher than for non‑problematic cases (with an average difference of EUR 5 478). Moreover, in some outlier cases described in the OPC, the overall costs for recognition procedures reportedly reached even EUR 25 000. Where a preliminary question is referred to the CJEU or the case is taken to the ECtHR, additional costs of EUR 4 000 to 8 000 are reported. Were problems with parenthood recognition smoothened out, most of these costs would not materialise. Therefore, the costs savings would be considerable for families that are currently affected by the problems.

Moreover, the procedures for the recognition of parenthood also generate costs for recognition procedures* that are borne by public authorities dealing with such parenthood recognition procedures. These costs result first and foremost from the time and effort spent by the personnel of civil registry authorities and courts to consider and process the cases. The costs for recognition procedures where parenthood is not recognised are on average 24 times higher than those for non-problematic cases.

In addition to the burden placed on families and public authorities by the lengthy, costly and burdensome proceedings required for the recognition of parenthood, the families whose family status are not recognised also face further transactional costs and litigation costs in relation to rights, duties and entitlements derived from the parenthood status of the child (such as costs related to maintenance or inheritance disputes).

2.5.2.3    What are the problem drivers?

The problem stems from (i) diverging Member States’ laws on the establishment of parenthood in cross-border situations (substantive rules and applicable law rules), and (ii) diverging Member States’ rules on the recognition of parenthood established in another Member State 92 . In addition, (iii) the fact that there are no legal instruments at EU or international level guaranteeing the recognition of parenthood that would have a wide material scope and apply to all Member States is the last problem driver.

As explained in Section 1, the national substantive law for the establishment of parenthood differs between Member States. Currently, there is a patchwork of inconsistent substantive family legislations in the various Member States. Each national law may therefore answer the question “who is the parent of this child?” differently. While this reflects the diversity of cultural and social values of the Member States and is in line with the division of competences between the EU and the Member States, it may raise problems when the reality of a family is linked to more than one Member State.

In situations with a cross-border element, Member States typically establish parenthood by determining the law applicable to the situation by reference to the connecting factor set out in their PIL rules*. Member States’ PIL rules* may differ because they may designate different laws (for example, the law of the nationality of the child or the law of the country where the child has its habitual residence) to establish the parenthood of a child in cross‑border situations. Moreover, in a few Member States 93 , the courts would not apply foreign law to the establishment of parenthood in cross-border situations but directly their national substantive law, therefore refusing the application of a foreign law.

Where parenthood is established in one Member State, a family may request another Member State to recognise the legal situation as such, usually by presenting a foreign birth certificate 94 . When it comes to the recognition of parenthood established abroad, Member States usually have different internal rules and procedures for recognition of parenthood according to whether the recognition of parenthood is sought on the basis of a judgment or of an authentic instrument* (such as a birth certificate). Some Member States recognise parenthood automatically, just subject to certain safeguards (such as public policy refusal ground) 95 . Other Member States determine parenthood de novo based on their national rules and thus accept the parenthood determined abroad only if it corresponds with the result achieved under their national rules 96 . Some Member States apply an applicable law test 97 , others apply a jurisdiction test 98  and others apply both tests, and where parenthood established abroad has not been established in line with these tests, the recognition may be refused. The replies of national experts in the context of consultations undertaken to inform this impact assessment confirm that this variety of tests used for the recognition of parenthood may render the procedure unpredictable for families.

In addition to these tests, all national laws include, as an additional safeguard, the possibility to refuse recognition on the ground of public policy, that is where the recognition of the foreign status would conflict with essential principles of their domestic law 99 . While, in some Member States, recognition may be refused where specific circumstances of an individual case raise a public policy objection (such as procedural irregularities in those particular proceedings), other Member States apply it more generally, for example to systematically refuse the recognition of same-gender parenthood. The often unforeseeable use by public authorities and courts of the public policy exception also creates uncertainty for the parties involved. Sometimes children and their families have to go up to the CJEU or the ECtHR (and back to the national systems) to achieve clarity on whether their status will be maintained after crossing a border. In addition to public policy, other refusal grounds may exist under Member States’ national law. With respect to the recognition of judgments, Member States law provides for both the refusal ground of public policy and other grounds for refusal 100 . In general, some Member States also apply special proceedings to the registration of a status established abroad which do not necessarily lead to the recognition of the underlying status.

Therefore, the divergent substantive and PIL rules on the establishment of parenthood, and the divergent rules for the recognition of parenthood established abroad are the main drivers causing the current problems with the recognition of parenthood. The harmonisation of the jurisdiction rules and the applicable law rules for the establishment of parenthood in cross-border situations, and of the rules for the recognition of parenthood established in another Member State, would facilitate the recognition of the parenthood established in another Member State even if the Member States’ substantive rules on the establishment of parenthood and on the definition of family remained divergent.

In addition to problem drivers, there are also external (or contextual) factors that themselves do not cause the problem with the recognition of parenthood but can, however, influence it. These include: (i) changing family models 101 ; (ii) scientific progress in the field of reproductive technology 102 ; and (iii) increased mobility of families in the EU. 

2.6.2.4    Who is affected by the problem? 

The main parties affected by the problem are cross-border families with children as well as public authorities (public administrations and the judiciary).

·Children and their families

The problems of non-recognition affect children and their rights in cross-border situations. However, children’s families are likewise affected – whether their parents or other relatives. It is estimated that there are 1 235 000 mobile couples with children in the EU, meaning an estimated number of 4 452 135 mobile parents and their children (see Annex 4 103 ). The prevalence, intensity, and effects of the problem with the recognition of parenthood may differ on a case‑by-case basis and depending on the family structure.

In cases of opposite-gender parents, problems with the recognition of parenthood would typically not result in the non-recognition of parenthood. The difficulties would be caused by administrative hurdles and costs, such as the need to provide specific documentation, expenses relating to translation, legal representation, DNA tests or the delays and costs for recognition procedures themselves. The main focus of this report will not be on these administrative difficulties but on the instances in which parenthood was not recognised.

Non-recognition of parenthood affects mostly: (i) children of same-gender parents, whether or not in cases of surrogacy, and (ii) children of opposite-gender parents, especially (but not only) in cases of surrogacy. The problem materializes mostly vis-à-vis Member States where these ways of family formation are not legally accepted in their national law 104 . 

·Rainbow families

It is estimated that there are around 100 000 mobile LGBTIQ parents and their children in the EU 105 . The parenthood of children to same-gender couples can be legally established in some 13 Member States in EU‑26 – for example through joint adoption, step‑parent adoption, or automatic co‑parent establishment 106 . Other Member States do not provide for the establishment of parenthood of children to same-gender couples in their national law.

Problems arise in cross-border situations where the parenthood of a child to same-gender parents legally established in one Member State in any of the above ways is not recognised in other Member States 107 . The refusal of recognition usually happens in Member States whose domestic law explicitly reserves the rights related to adoption and parenting to opposite‑gender couples (or single parents). The refusal to recognise the parenthood of a child in a rainbow family in those Member States is thus mostly based on public policy and/or constitutional identity grounds. As a result, the children born to rainbow families may be effectively deprived of the legal relationship with one (or both) of their parent(s) 108 . Ultimately, as explained above, many rainbow families may be deterred from moving or returning to Member States where their family relationship would not be preserved in some important respects. It has been found, based on the consultations in the context of this impact assessment, that most rainbow families in fact avoid, despite possibly foregoing personal or professional opportunities, situations where the recognition of parenthood would be necessary. This deterrent effect may thus affect a large number of rainbow families 109 .

·Families with opposite-gender parents

Children of opposite-gender parents may also encounter instances of non‑recognition of parenthood, albeit less frequently. Given for instance the differences in: (i) legal presumptions of parenthood in the Member States’ substantive laws, or (ii) the assessment of any possible incidental questions, such as the validity of the marriage or registered partnership of the parents, each Member State may determine parenthood differently in cross-border cases. Therefore, problems with the recognition of parenthood stemming from the differences in national (PIL) laws may happen to families in relation to all Member States. These recognition problems can usually be solved in court and/or through genetic (DNA) testing of children. While these cases may involve initial non-recognition of parenthood, they would typically end with a recognition, but possibly after a lengthy, costly, and burdensome process.

For further examples of problem scenarios, see Annex 7.

The results of the OPC, as well as case law 110 , point to another group of families affected by difficulties with the recognition of parenthood: families with children born as a result of surrogacy arrangements. Surrogacy is a sensitive issue that raises ethical questions. Several EU Member States prohibit surrogacy in their national law. Other EU Member States do not regulate surrogacy – neither prohibiting it, nor allowing it. Where families resort to surrogacy abroad to avoid the restrictions on surrogacy practices in their home Member State or for other reasons, they may face problems with having the parenthood of their child recognised upon return. Despite the existence of the ECtHR case law on the matter 111 , it appears that such problems do persist and may be even growing in number given the global increase of the surrogacy phenomenon 112 . The legal complications related to the recognition of parenthood established through surrogacy arrangements may include difficulties with getting the documentation for the child, a need for emergency travel documents, genetic (DNA) testing to prove the genetic parenthood of the genetic parent(s), or adoption by an intending parent. The number of surrogacy arrangements in EU Member States is rather low as compared to global surrogacy trends 113 . However, statistics relating to surrogacy are not available, as there are generally no formal reporting mechanisms 114 . Consequently, the number of families encountering problems with the recognition of the parenthood of a child born out of surrogacy in another Member State is difficult to assess.

·Public administrations and the judiciary

In addition to children and their families, the public administrations and the judiciary of Member States are affected by the current problems, especially by the burden and costs generated as a result of the persisting difficulties with the recognition of parenthood and the legal uncertainty 115 .

2.7.2.5    The scale of the problem 

The scale of the problem can be defined by the number of mobile parents and their children affected by the non-recognition of parenthood. This number amounts to estimated 103 000 people, the vast majority of which corresponds to same-gender parents and their children. This figure should be taken with caution as it is quantified based on several estimates (as to which, see Annex 1 and Annex 4) 116 . Notably, the number of persons affected by the problems with the parenthood recognition would be higher than the estimate made, if the methodology also considered single parents with children 117 and families that have more than two children. 

Nevertheless, the quantitative size of the problem in terms of the absolute number of children and their families affected should not be considered as the prime or only indicator of the seriousness of the problem, or as the basis to assess the need for the EU to take action to address the problem. This is because, where the parenthood of a child is not recognised, severe violations of the child’s fundamental rights take place. Under international law, EU law and Member States’ law, all children without distinction are granted the same rights. Situations in which the children’s fundamental rights are not respected in cross-border situations pose a grave problem in the EU, which has set itself the objective of creating, maintaining and developing an area of justice in which the free movement of persons is ensured.

2.8.2.6    How likely is the problem to persist?

The definitions of parenthood and family have undergone rapid developments in the recent decades and these developments will continue. Member States are reacting and several are planning to revise or are revising their substantive and PIL rules* on parenthood 118 . These changes may increase or decrease the parenthood recognition problems depending on whether the national approaches to parenthood matters would be more or less convergent as a result of these changes. In any case, these changes to national law would not tackle the parenthood recognition problems. 

The consultations undertaken in the context of this impact assessment confirmed that the problems would indeed continue or increase 119 . The increased incidence of the problem in the future is also caused by the external factors, such as the greater diversity of families 120 , (likely) leading to a greater divergence of national family laws; future advances of reproductive technology 121 ; or growing mobility of persons in the EU. The mobility of persons in the EU was influenced by the COVID-19 pandemic in the short term; however, as the situation will normalise after the pandemic, the mobility of families in the EU will continue growing (estimated 5% of citizens will be mobile in 2032). It is projected that the number of mobile couples with children will increase in the future and reach 1 936 558 in EU-26 in 2032, a 57% rise over 2020 estimates 122 . This will further increase the need for the recognition of parenthood abroad. The number of cross-border families experiencing problems with parenthood recognition in another Member State is also likely to increase, depending on the development of the other factors influencing the scale of the problem. 

With the possible exception of the HCCH Parentage / Surrogacy Project*, there are currently no international policy initiatives aimed to address all aspects of the recognition of parenthood (for details about the Project and why it does not eliminate the need for an action concerning recognition of parenthood at EU level, see Section 3 below). The problem could also be partially mitigated by future legislative changes at national level aimed to address the problems of parenthood recognition, and by strategic litigation efforts before national courts, the ECtHR and the CJEU, which could bring about more guidance and impose further obligations on Member States regarding the continuity of parenthood across borders. The guidance and obligations might be, however, implemented to diverging extents in the Member States.

Overall, in the reference period of 2022-2032, cross-border families in the EU would continue facing the risk that their parenthood would not be recognised (for purposes such as civil status and rights derived from it).

3.3.    Why Should the EU Act?

2.9.3.1    Legal basis

The aim of the legislative initiative would be to facilitate the recognition of parenthood between Member States. As in other EU instruments concerning family law, this would be done through the harmonisation of the Member States’ rules on private international law, that is, the rules on international jurisdiction, applicable law and the recognition of parenthood. Indeed, while the competence on substantive family law (such as the rules on the definition of family or on establishing someone’s parenthood) lies with the Member States, pursuant to Article 81(3) TFEU the EU has competence to adopt measures on family law with cross-border implications, including the harmonisation of the Member States’ PIL rules*. In this area, the EU has a shared competence with Member States. Measures pursuant to Article 81(3) TFEU must be adopted through a special legislative procedure whereby the Council acts unanimously after consulting the European Parliament.

The measures adopted by the EU under Article 81(3) TFEU to facilitate the recognition of parenthood between Member States will not change the substantive rules of the Member States on the definition of family or on the establishment of parenthood and will thus respect the Member States’ exclusive competence in substantive family law.

2.10.3.2    Necessity and added value of EU action

·Possible action by Member States 

The problem of non-recognition of parenthood and its consequences have an EU dimension. The problem with the recognition in one Member State of the parenthood established in another Member State is cross-border by its very nature, since (non‑)recognition requires, by definition, the involvement at least of two states. Furthermore, problem consequences may deter children and their families from exercising their right of free movement. Since the problem described in Section 2 stems from the fragmentation of national rules regarding cross‑border aspects of parenthood, any uncoordinated action at the level of Member States that would not have a harmonising effect on these rules and would not be capable of effectively and comprehensively tackling the problem. The cross‑border nature of the problem means that it cannot be solved by means of national measures.

The aim of the proposal is to facilitate recognition through the adoption of harmonised rules on jurisdiction and applicable law. Member States cannot by themselves harmonise the currently diverging Member State rules on these matters. Only EU intervention can effectively facilitate the recognition of parenthood between Member States, ensure mutual trust between them and legal certainty and predictability in matters of parenthood in the EU, while reducing costs and burden of the recognition procedures for cross‑border families and public authorities. Therefore, the objectives of the Parenthood initiative, by reasons of its scope and effects, would be best achieved at EU level in accordance with the principle of subsidiarity.

·Possible action at international level

A separate question also arises as to why the problem should be tackled at the EU level as opposed to finding a global international solution.

As indicated, the HCCH is currently working on the HCCH Parentage/Surrogacy Project*. An expert group is currently examining the feasibility of an international convention on the recognition of legal parentage and an additional protocol concerning ISAs*. A global approach ensuring the recognition of decisions on parenthood would be an efficient means for ensuring the best interests of children worldwide. However, the Project, while having started more than 10 years ago, is still in its preparatory phase as the HCCH members are still to decide on its feasibility. Given the marked differences between the rules on parenthood among countries in the world, it may take considerable time before a consensus on an international instrument can be reached by all HCCH members and even longer before such an instrument is widely ratified.

Since EU Member States share a similar socio-cultural framework and a higher mutual trust than with third countries, any instrument concerning the recognition of parenthood can garner consensus more easily among EU Member States than among all HCCH members. This is supported by the recent CJEU ruling in V.M.A., which already requires that Member States recognise parenthood established in another Member State for some purposes 123 , and by the ECtHR case law concerning the protection of private and family life in the context of the recognition of parenthood.

4.4.    Objectives: What is to be achieved?

The following objectives reflect the problem identified in Section 2 and set out goals which the policy options aim to achieve.

2.11.4.1    Overall objective

The overarching objective of the EU action is to create, maintain and develop an area of freedom, security and justice in which the free movement of persons is ensured.

To achieve this overall objective enshrined in the EU Treaties 124 , further objectives have been identified. 

2.12.4.2    General objective

The general objective of the initiative is to facilitate the recognition of parenthood between Member States (“General policy objective”). 

2.13.4.3    Specific objectives

To achieve the general objective, it is essential to remove or significantly reduce the obstacles to the recognition of parenthood between Member States. Thus, three specific objectives have been set, which correspond to the identified consequences of the problem:

·Ensure respect for the fundamental rights of children in matters concerning parenthood recognition (“Specific policy objective 1”);

·Ensure legal certainty, predictability, and continuity of parenthood (“Specific policy objective 2”);

·Reduce costs and legal and administrative burden for families, public administrations and courts (“Specific policy objective 3”).

All three specific objectives are mutually compatible and attaining any one of them also contributes to achieving the others. These objectives should be achieved within the reference period (2022-2032) or, depending on the date of adoption of the Parenthood initiative, in a reasonable time after that adoption.

Since the EU action primarily aims at safeguarding the fundamental rights of children in cross-border situations, the first specific objective (Ensure respect for the fundamental rights of children in matters concerning parenthood recognition) is the main driving force behind the Parenthood initiative.

Figure 3: Intervention logic

5.5.    What are the available policy options?

The following policy options will be considered:

•Option 0:    Baseline scenario

•Option 1:    Commission recommendation addressed to Member States

•Option 2:     Legislative measure: proposal for a Regulation on the recognition of parenthood between Member States

•Sub-option 2.a: proposal for a Regulation on the recognition of parenthood between Member States including only rules on the recognition of court decisions

•Sub-option 2.b: proposal for a Regulation on the recognition of parenthood between Member States including rules on the recognition of both court decisions and authentic instruments* 

(The choice between both sub-options is detailed in Annex 5).

•Option 3:     Legislative measure: proposal for a Regulation on the recognition of parenthood between Member States (policy option 2), including in addition a European Certificate of Parenthood.

The policy options would not affect the rights that a child derives from Union law, in particular the rights that a child enjoys under Union law on free movement, including Directive 2004/38/EC. Under the baseline and all policy options, CJEU and ECtHR case law would also continue to further evolve in the future. Under the baseline and all policy options, Member States could also make changes to their national law regarding parenthood and participate in international initiatives, for instance in the context of the HCCH Parentage/Surrogacy Project*.

All policy options, including the baseline option, would also include certain “non‑legislative measures”, e.g. to raise awareness, promote good practices and improve cooperation among public authorities dealing with parenthood issues. Introducing non‑legislative measures was also supported by a majority of stakeholders and authorities consulted 125 . These non-legislative measures would be, for instance:

·organising thematic meeting(s) on the topic of the recognition of parenthood in the framework of the EJN-civil*. Such thematic meeting(s) could be aimed at exchanging information, pursuing the joint analysis of existing problems and possible solutions thereto and developing practical solutions and good practices. This can be done under all policy options, including the baseline. In addition, should legislation on the recognition of parenthood be adopted by the EU (under one of the legislative policy options), EJN‑civil would be tasked with facilitating the practical application of the legislation (as is the case for other EU legislation on civil law with cross border aspects); or

·including a section in the e-Justice Portal describing the national law of Member States concerning the establishment (and recognition) of parenthood in order to provide clear information to the public and to legal practitioners about the applicable rules and procedures.

2.14.5.1    What is the baseline from which options are assessed?

Under the baseline scenario (Policy option 0), the European Union would make no policy change to address the existing problems with the recognition of parenthood between Member States during the reference period (2022-2032). The Commission could nevertheless undertake some non‑legislative measures (see above), since exchanging on the topic in the context of EJN‑civil* requires no change of the current policy 126 . All international and EU instruments in the family-law area will continue to exist and the case law of the CJEU and the ECtHR will continue to oblige Member States to recognise parenthood for some purposes but not for others. Further case law may emerge in the future, as families will need to resort to litigation to protect the rights of their children and prevent situations of limping parenthood* 127 .

Expected impact of the baseline scenario

A majority of respondents to the OPC (54%) stated that the current status quo is a serious problem. This proportion was even higher among respondents being aware of cases in which parenthood was not recognised (91% of these respondents considered the status quo to be a serious problem) 128 . Without any action at the EU level, the problem of non‑recognition of parenthood in the EU would persist and is even expected to grow between now and 2032, given the anticipated increase in the mobility of families and the influence of social, scientific and demographic changes on national family law. As a result, the consequences of the problem would keep affecting negatively the rights and psycho‑social wellbeing of children and their families. Indeed, the negative impact on the rights of children and their family members (including the fundamental rights of children and civil‑law rights such as the right to maintenance or succession etc.), psychological impact and impact on exercising free movement rights are expected to continue and even increase. The persisting difficulties with the recognition of parenthood would also continue to cause delays 129 in the procedures and generate costs for recognition procedures* and hassle costs* for all the persons involved. The costs for recognition procedures were estimated based on methodology detailed in Annex 4. They are based on several assumptions (detailed in Figure 8) and should thus be taken with caution.

Figure 4: Estimated costs for recognition procedures* (EUR million)

2.15.5.2    Description of the policy options

Several policy options can be envisaged. The aim of any EU action, whether legislative or soft law, would be to meet the policy objectives, in particular to facilitate the recognition of parenthood between Member States and to ensure the protection of children’s rights in cross-border situations.

The Parenthood initiative would focus on the recognition of parenthood of both children and adults 130 . All possible measures envisaged under the Parenthood initiative would have the protection of the children’s rights and their best interests as their primary consideration. The scope of all policy options should be broad enough to cover all children affected by the problems with the recognition of parenthood, regardless of their type of family. This should ensure that all children are treated equally and all enjoy equally the same rights under a possible EU measure. Nonetheless, as the protection of children in the context of intercountry adoptions* is already sufficiently governed by the HCCH 1993 Intercountry Adoption Convention among all Member States, intercountry adoptions could be left out of scope of a possible EU action 131 . By contrast, the Parenthood initiative would cover the recognition of parenthood, as established by domestic adoption* (including both full and simple adoptions*), since the recognition of parenthood established through domestic adoptions is not yet regulated in any international or EU instrument 132 .

The policy options, especially the legislative ones, would lay down rules applicable to the recognition of court decisions given and authentic instruments drawn up after the date of application of the instrument. In addition, the temporal scope could be extended, subject to certain conditions, to the recognition of parenthood established before the date of application of the new instrument 133 .

Moreover, all policy options will only concern the recognition of parenthood between Member States (territorial scope), that is, they would not harmonise the rules governing the recognition of court decisions or authentic instruments on parenthood issued in a third country. The recognition of such documents would thus continue to be subject to Member States’ national law. The Parenthood initiative would in principle apply to all Member States, except Denmark 134 . In addition, Ireland would only be covered by the legislative policy options if it decides to opt in 135 . The Parenthood initiative would not be based on the nationality of the people but on whether the court decision or authentic instrument on parenthood has been issued by the authorities of a Member State 136 . It would thus apply both to EU citizens and also non-EU citizens. 

Since the recognition of parenthood would only concern the recognition of the child‑parent status, the policy options will not deal with the legal effects derived from that status under the Member States’ national law (for example parental responsibility, inheritance rights, nationality etc.). These rights and obligations will continue to be determined by the national substantive and PIL rules of each Member State, subject to their obligations under EU law and case law, but following parenthood recognition, such rights will become equally applicable as for citizens who had their parenthood established domestically. The legal effects of a recognised parenthood should nevertheless coincide with those that other children in that Member State derive from their parenthood status.

·Option 1: Commission recommendation addressed to the Member States (“PO1”)

In line with Article 292 TFEU, the Commission can adopt a Commission recommendation addressed to the Member States (“Recommendation”).

Under this option, the Commission would suggest to Member States, in the form of a Recommendation, uniform rules on the establishment of parenthood in cross-border situations and on the recognition of parenthood. The recommended measures would be similar to those that could be adopted in the form of a binding legislation under the Policy Option 2 and would include: (i) jurisdiction rules; (ii) applicable law rules; and (iii) rules on the recognition of parenthood. However, the difference between the legislative option and this soft law option is that the latter is not binding and directly applicable. Under PO1, Member States would need to amend their national law so as to adopt the uniform rules proposed in the Recommendation, but they would not be legally required to do so as recommendations are not binding.

Unless the Recommendation were effectively implemented by all Member States within a reasonable timeframe, the heterogeneity of the rules concerning parenthood with cross‑border element would persist and continue to cause problems in the future. If some but not all Member States implemented the Recommendation, this could result in partial increased coherence between national rules on the PIL aspects of parenthood and mitigate slightly the incidence of problems. However, it would be decisive how many and which Member States take up the Recommendation 137 . Even in a very optimistic scenario where the Recommendation were implemented by 50% of Member States, the positive impact of the Parenthood initiative would be unevenly realised across the EU, and the situations of limping parenthood* and deterrence of families from exercising their right to free movement would continue in the EU. The problem with the recognition of parenthood would thus not be solved. In fact, it is highly unlikely that the positive scenario of a 50% uptake would actually materialise as Member States have limited incentives to change their existing national law in line with a Recommendation. This conclusion is based, among others, on past experience with Recommendations to Member States in the area of civil justice 138 and on the limited interest shown by Member States in this policy option during the consultations. Finally, the lack of certainty that all Member States will implement the Recommendation may lead some Member States to decide not to invest in implementing a voluntary instrument which does not guarantee reciprocity between Member States.

Only a few stakeholders or Member States representatives favoured this policy option 139 . In addition, this PO would not be entirely compatible with the existing political context at EU level. In 2017, the European Parliament requested the Commission to submit a legislative proposal on the cross-border recognition of adoption orders 140 and in 2022, it welcomed that the Commission announced to put forward a legislative proposal on the recognition of parenthood between Member States 141 .

Given the uncertainty that Member States would implement the Recommendation in their national law, it is unclear whether the Recommendation would address effectively the present problems of parenthood recognition between Member States and whether it would meet the objectives of the initiative. Based on the above considerations, this policy option was discarded. 

·Option 2: Legislative measure (proposal for a Regulation on the recognition of parenthood between Member States) (“PO2”)

The competence of the EU to adopt measures concerning family law with cross-border implications is based on Article 81(3) TFEU. Under this policy option, the Commission would propose a regulation on the recognition of parenthood between Member States (“Regulation”, “Parenthood regulation”). The Parenthood regulation would not affect the rights derived from EU law*, in particular the rights that a child enjoys under EU law on free movement, including Directive 2004/38/EC 142 .

Such Regulation would ensure legal certainty, predictability, and the continuity of parenthood in cross-border situations, ensuring the respect of children’s rights and the best interests of the child. It would appeal, as a policy objective, to the need to protect children’s rights in cross-border situations regardless of how they were conceived or born and of the children’s type of family. In order to do away with the divergences in national PIL rules that currently cause problems with parenthood recognition and in line with existing EU instruments on private international law, the legislation would take the form of a regulation rather than of a directive 143 .

It is particularly relevant for shaping this legislative policy option to assess whether the Regulation should include only the recognition of court decisions on parenthood (Policy Option 2a) or also the recognition of parenthood recorded in authentic instruments (such as a birth certificate or a notarial deed on domestic adoption)* (Policy Option 2b). In order to determine the most suitable scope of the Regulation, these sub‑options were assessed separately in Annex 5 of this report and the chosen sub‑option became PO2. Given that parenthood is in the vast majority of cases established by operation of law (that is, by birth and by a legal presumption of parenthood by the spouse or partner of the mother) and then proven by means of a birth certificate, and that parenthood is established by a court decision only rarely (typically in case of dispute), it was concluded that PO2 would be a regulation on the recognition of parenthood between Member States including the recognition of both court decisions and authentic instruments 144 . 

To ensure the circulation of authentic documents, it would be imperative that all public authorities follow the same applicable law rules for the establishment of parenthood with cross-border implications, it would thus become necessary to harmonise applicable law rules on the matter.

The regulation would thus harmonise the PIL aspects of parenthood, that is: (i) jurisdiction rules; (ii) applicable law rules; and (iii) rules on the recognition of parenthood. These common rules would ensure that, once parenthood is established in compliance with the Regulation, it would be recognised throughout the EU. A Member State should thus recognise the parenthood established in another Member State (i) where such parenthood was established in accordance with the applicable law designated by the instrument; and (ii) if relevant, where the decision was given by a court which had jurisdiction based on the rules of the Regulation.

Suitable connecting factors designating the law applicable to parenthood would be chosen, for instance, the law of the State of the habitual residence of the person giving birth or the law of nationality of a parent. The choice of applicable law would be excluded. The uniform connecting factors, especially if based on habitual residence, would also not increase the instances of forum shopping or contribute to the circumvention of national rules on the establishment of parenthood. Courts and public authorities would have to respect these rules on applicable law when establishing parenthood in cross‑border situations and when issuing national certificates of parenthood or the ECP.

Appropriate grounds for the refusal of recognition would also be included. For example, if recognition is manifestly contrary to the public policy of the Member State where recognition is invoked 145 , or the decision was given in default of appearance and the defendant was not served with the documents instituting the proceedings, or the decision on recognition is irreconcilable with a decision between the same parties in the Member State where recognition is invoked. The principle of mutual recognition would be the default principle. Such possible legislation would not undermine the national identity of Member States as it would not require Member States to change their substantive family law on parenthood, including on the definition of family. Measures adopted pursuant to Article 81(3) TFEU must be adopted by unanimity in Council, which will ensure that all national sensitivities have to be taken into account.

In the consultation activities undertaken in the context of this impact assessment, the opinions as to the desirability of legislative measures varied. For instance, 60% of the OPC respondents fully agreed to the Commission proposing a legislation on parenthood; however, the second highest number of respondents (33%) fully disagreed, mostly stating that the recognition of parenthood should be regulated only by Member States. A similar diversity of views was observed in other consultation activities (see Annex 2). It emerged from OPC and other consultations that those who were aware of the existing parenthood recognition problems also generally supported a legislation at EU level 146 .

·Option 3: Legislative measure (Regulation on the recognition of parenthood between Member States, including a European Certificate of Parenthood) (“PO3”)

Option 3 is the same as Option 2 defined above, but includes in addition a European Certificate of Parenthood (“ECP”).

Including the ECP in the scope of the possible legislation was supported by stakeholders consulted in the context of this impact assessment. For instance, 85% of those OPC respondents who generally supported EU legislation on the recognition of parenthood between Member States also favoured the idea of introducing an ECP, and 62% deemed it a priority 148 . The COM Expert Group also agreed that introducing the ECP would have added value as it would have several advantages over national certificates on parenthood.

A similar idea of introducing a “European Civil Status Certificate” to facilitate cross‑border formalities was floated already in the 2010 Green Paper 149 . A “European Certificate of Adoption” was suggested in the Parliament’s resolution on cross-border aspects of adoptions 150 .

2.16.5.3    Discarded policy options – Policy Option 1

Based on the explanation above, in particular the uncertainty concerning the uptake of the Commission recommendation to Member States and the related likelihood that this policy option would not meet the objectives of the initiative, Policy Option 1 was discarded.

6.6.    What are the impacts of the policy options?

This section assesses the impact of each policy option (such as economic and social impact, impact on fundamental rights, impact on digitalisation). It also assesses the extent to which each policy option is likely to achieve the policy objectives.

2.17.6.1    Achievement of policy objectives by the Policy Options 2 and 3

It should first be examined whether the policy options are “fit for purpose”, that is, whether they achieve the General Policy Objective of facilitating the recognition of parenthood between Member States as well as the Specific Objectives 1, 2 and 3 151 .

The Parenthood regulation that forms the basis of Policy Option 2 (PO2) and Policy Option 3 (PO3) would tackle the problem drivers as it would provide uniform rules on applicable law, jurisdiction on and recognition of parenthood with cross-border implications. Since parenthood would be established in accordance with harmonised applicable law rules, each national authority would apply the same national law and thus reach the same result as to the parenthood of a child. At the same time, the recognition rules in the Regulation would be simplified.

This system would facilitate the cross-border portability of the child’s parenthood and ensure harmony of decisions of public authorities in the EU. POs 2 and 3 would thus significantly contribute to facilitating recognition of parenthood between Member States and would thereby reduce legal uncertainty and unpredictability concerning the preservation of parenthood in another Member State. This positive effect would materialise for all cross-border families that strive to have the parenthood of their children recognised in another Member State 152 . Moreover, these options would also safeguard the fundamental rights of children and other family members in cross-border situations, in particular of those that currently experience the most serious problems with the recognition of parenthood. Both PO2 and PO3 would thus achieve the Specific Policy Objectives 1 and 2, while the PO3 would be more effective than PO2 in achieving the General Policy Objective.

In addition, they would contribute to reducing the costs and legal and administrative burden for families and public authorities (Specific Policy Objective 3) 153 . In the absence of diverging rules on the law applicable to the establishment of parenthood in cross-border situations, families would no longer need to rely on expensive legal advice or resort to litigation. This would in turn translate in a lower caseload and lower costs for national judiciaries.

2.18.6.2    Impact of legislative Policy Options 2 and 3

This section assesses the impact of the two legislative options (PO2 and PO3). The impact of PO1 is not assessed as this policy option was discarded. Since PO2 is a basis for PO3, the assessment of PO3 will focus on the differences in impacts between the POs.

The assessment covers the impact on all EU Member States, except Denmark 154 . As explained above (Section 5.2), the policy options only concern the recognition of parenthood between Member States, they would thus not impact the recognition of parenthood in third countries or of parenthood established in third countries. The reference period for the assessment of the impacts is 2022-2032. While the biggest difference with the current status quo would be felt by the children and families that currently experience the problems with the recognition of parenthood, all families stand to benefit from policy options 2 and 3 as the harmonisation the jurisdiction and applicable law rules on parenthood and simplified recognition rules would result in increased legal certainty, simplification and costs savings. The main impact is expected with respect to Member States which currently have a more restrictive regime for recognising parenthood established abroad.

The following main impacts will be assessed: (1) legal impacts (impact on fundamental rights and children’s rights, including impact on exercising free movement rights, and impact on the legal environment); (2) social impact (including the impact on emotional and psychological wellbeing of children and their families, their economic welfare and equality); and (3) impact regarding administrative burden and simplification. In addition, macro-economic impact (4), and other minor impacts will also be briefly explained. No relevant environmental impact is expected. All the impacts described below are intended ones 155 .

2.19.6.2.1    Legal impacts 

Legal impacts can be divided into two categories: (i) legal impact on children and their families; and (ii) impact on the legal environment.

2.20.6.2.1.1    Legal impact on children and their families

By providing uniform jurisdiction and applicable law rules and thereby facilitating the recognition of parenthood in the EU, the PO2 and PO3 ensure that the negative effects on children’s rights described in Section 2 do not materialise. In addition, the policy options would simplify the current legal patchwork of incoherent national PIL rules and thereby increase legal certainty. The policy options would thus have a clear positive impact on the protection of children’s rights in cross-border situations.

Impact on fundamental rights

Above all, the Parenthood regulation would contribute to preventing the violation of children’s fundamental rights. It is contrary to the children’s best interests and their rights anchored in the Charter, UNCRC, ECHR, and other instruments to be deprived of civil status and of the genuine family life in cases where parenthood was validly established in another State. In addition, fundamental rights of other family members may likewise be at stake in situations of limping parenthood*. By streamlining the recognition of parenthood in the EU, PO2 and 3 stand to effectively enhance the parenthood status continuity across borders within the EU and to protect the fundamental rights that are undermined under the current status quo. More precisely, PO2 and 3 would significantly uphold the respect of fundamental rights of children, such as the right to personal and family life 156 , and non-discrimination 157  and rights of the child, such as the best interests of the child 158 and the right to maintain on a regular basis a personal relationship and direct contact with both parents (unless that is contrary to his or her interests) in cases involving the recognition of parenthood status in the EU. In addition, as the non‑recognition of parenthood leads to unequal treatment between families, remedying this situation would indirectly help to promote equality in the EU 159 .

Moreover, besides remedying the existing breaches of fundamental rights and principles, the proposal for the Regulation itself would be based on the protection of fundamental rights, including non-discrimination and the best interests of the children as its primary considerations. This includes, most notably, that the proposal would be based on the principle of strict equality of the rights of children, irrespective of the circumstances of their conception, birth and type of family. Indeed, it is considered vital that the circumstances of the child’s family formation should not justify the violation of the child’s rights or their discrimination. The proposal would thus have a broad scope not to leave children in vulnerable situations.

Finally, as regards children’s right to know their origins (including the collection and preservation of, and access to, this information), in the absence of the EU’s competence to regulate matters of substantive family law, it remains the obligation of Member States to ensure the protection of children’s right to know their origins in compliance with their international commitments 160 .

Both PO2 and PO3 will have the above-described positive impact on fundamental rights. PO3 would likely promote equality and inclusiveness to a greater extent since the uniform ECP could prevent many situations of discrimination resulting from the current gendered birth certificates 161 .

Impact on children’s rights and parental obligations derived from parenthood

In addition to the fundamental rights of children, the streamlined recognition of parenthood under POs 2 and 3 would also have a positive impact on other children’s rights derived from parenthood and the parental obligations owed to children. Under both policy options, children would no longer experience problems with the recognition of their parenthood status and would thus not be deprived of the legal effects derived from such status. This includes in particular all civil‑law rights and obligations, such as parental rights to act as the legal representative(s) of a child (in matters such as giving consent for medical treatment of the child, enrolling the child in school, opening a bank account on behalf of the child), child’s maintenance entitlements and inheritance rights, visiting rights and custody rights by a parent. The Parenthood regulation would also increase legal certainty of families concerning the parenthood status continuity in cross-border situations.

Impact on the exercise of the right to free movement

Similarly, as the non-recognition of a child’s parenthood may deter families from exercising their right to free movement (See Section 2.2), both PO2 and 3 will have a positive impact on the right to free movement 162 . Indeed, by laying down uniform PIL rules for the establishment and recognition of parenthood in cross-border situations, the legislative policy options would provide legal certainty to families that the status and civil‑law rights of their children would be protected throughout the EU. While it is not possible to quantify this impact, it will be one of the main impact of the Parenthood regulation.

 Impact on legal environment

As the Parenthood regulation would align the existing disparate PIL rules on the establishment and recognition of parenthood with cross-border elements, it would ensure that parenthood would be established throughout the EU based on the same applicable law and by authorities having international jurisdiction based on previously agreed uniform rules. This would contribute to the harmony of decisions (by avoiding conflicting decisions given by courts in different Member States) and avoid situations of limping parenthood*. Besides that, it will also simplify the patchwork of rules and increase legal certainty for all children and families involved, and for public authorities 163 . Families would no longer need to seek professional legal assistance so frequently or engage in litigation to achieve the recognition of parenthood. Ultimately, the Parenthood regulation would “build bridges” between legal systems and increase mutual trust among Member States in matters of parenthood. 

2.21.6.2.2    Social impact 

Through the uniform rules in the Regulation, the PO2 and PO3 would decrease the incidence of limping parenthood*. The legislation is thus expected to alleviate the negative impact on the welfare of children in relation to which parenthood is not recognised and on their families. The PO2 and 3 would contribute to the general wellbeing of children, both long‑term and short-term and both from the psychological and economic dimensions. As regards the psychological dimension, in the absence of problems with the recognition, the emotional distress would be alleviated. As regards the economic dimension, even though the Regulation would only address the recognition of parenthood as a civil status and would not regulate the rights derived from it (as the legal effects of parenthood would remain subject to national law), it may nevertheless have an indirect positive impact on other rights for which the recognition of the parenthood status is relevant. These may include, for example, social security rights (family allowances, other social advantages), child-related tax advantages, receiving parental leave rights, access to housing, rights related to education and healthcare where such rights are not derived from EU law. This may ultimately lead not only to an improved wellbeing and reduction of poverty of the affected families, but also to the promotion of socio‑economic equality. The legislation will thus combat social exclusion and discrimination and promote social justice and protection.

These impacts are highly individual, depend on the family situation and differ in each jurisdiction. Therefore, the approach was taken in this report not to quantify the social impacts 164 . However, they may be significant for those families that currently do experience problems with the recognition of parenthood and may translate into considerable financial costs and losses.

2.22.6.2.3    Impact on costs and administrative burden

The Parenthood regulation under PO2 and PO3 would significantly simplify the current system of diverse (and often contradictory) national PIL rules concerning the establishment and recognition of parenthood with a cross-border element. Due to this simplification and increased consistency and clarity, cross‑border families and Member States’ public authorities (administrative authorities and judiciary) will experience considerable cost savings under both policy options.

Figure 5: Estimated costs and costs savings for recognition procedures* under PO2 and PO3 165

2.23.6.2.3.1    Costs borne by cross-border families 

First, the costs for recognition procedures* borne by families that currently experience problems with the recognition of parenthood would decrease substantially since:

-the cases of non‑recognition of parenthood would be less common and severe and therefore less families would need to launch court proceedings to ensure the continuity of the parenthood status of their child across borders (this resulting in further significant costs savings on court fees, other documents, translations and legal representation before the court) 166 ;

-there would be a lesser need for legal advice throughout the recognition procedure 167 ;

-less documentation would have to be produced and translated by the families requesting the recognition of parenthood 168 .

Notably, the average costs for recognition procedures* borne by families that currently experience problems with the recognition of parenthood would decrease from estimated EUR 5 856 per case by approximately 83% under PO2 (to EUR 981 per case on average) and 90% under PO3 (to EUR 578 per case on average).

Second, besides the families that are currently affected by the problems with the recognition of parenthood, all other families would also save on the costs for recognition procedures*, although to a lesser extent than those families currently affected by problems since their initial costs are not so high 169 . In particular the ECP (under the PO3) would substantially facilitate the recognition process not only for families that currently experience problems but for all 4 452 135 cross-border parents and their children in the EU, reducing their costs for recognition procedures more than three times as compared to the baseline.

Taken together, the costs for recognition procedures* borne by cross-border families would be significantly reduced under both PO2 and PO3 (see the Figure 5 above). Families thus undoubtedly stand to benefit from the policy options. In addition, POs 2 and 3 can lead to other indirect cost savings for families that currently experience recognition problems, as they would reduce (or eliminate) the transactional costs and/or the likelihood of civil litigation in relation to rights, duties and entitlements derived from the parenthood status of the child, such as costs related to maintenance or inheritance disputes 170 . All families also stand to benefit from the overall reduction of hassle costs* related to the recognition procedures 171 .

Cross-border families are not expected to incur compliance costs under PO2 and 3.

2.24.6.2.3.2    Costs borne by public authorities 

As an effect of the clearer legal framework and the lower incidence of court litigation, POs 2 and 3 are estimated to generate a reduction in the time and effort needed by public authorities in EU‑26 to process the cases concerning recognition of parenthood 172 (see the Figure 5 above). It is estimated that this would translate into the reduction of costs for recognition procedures* borne by public authorities of about 26% under PO2 (as compared to the baseline) and of 53% under PO3 173 .

As regards compliance costs for public authorities under PO2 and PO3, the Parenthood regulation may generate one‑off adjustment costs 174 .

-For instance, financial costs for Member States could arise for the introduction of the new rules concerning applicable law and jurisdiction in matters concerning parenthood with cross border implications. However, the Regulation would not oblige Member States to create any new bodies, to change the functioning of their public registers, internal procedures or the forms of national certificates of parenthood they issue.

-As is the case with any legislation, costs would also arise for the familiarization with a new legal framework and training of judges, civil registrars and legal professionals. PO3, as compared to PO2, is expected to generate additional small training costs for public authorities as regards the use of the ECP.

-The full realisation of the benefits from the ECP may also require some accompanying measures such as communication campaigns; these costs however have not been quantified.

-Finally, Member States would incur moderate additional IT-related costs as the Parenthood regulation would introduce the possibility of digital communication between individuals and Member States’ authorities in relation to the procedures under the Parenthood regulation 175 .

In addition, minor recurrent adjustment costs (such as those for the issuance of ECPs, regular training of staff about the new rules, upkeep of IT system) can be expected. These are expected by more than half of the consulted ministries and are generally anticipated to be moderate 176 . It is also possible that some Member States would decide to request a fee for issuing the ECP (like for a national birth certificates) to recoup some of the costs related to the introduction and issuance of the ECP 177 . However, the Regulation would include a provision the fee collected for issuing the ECP should not be higher than the fee collected for issuing of similar national certificates recording parenthood.

The enforcement costs* associated with activities such as monitoring of the application of the Regulation would be marginal.

Overall, the compliance and enforcement costs for public authorities associated with PO2 and 3 would not be significant and would be offset by the efficiency gains generated by these policy options 178 .

2.25.6.2.4    Other economic impacts

The economic benefits of the PO2 and PO3 would be mostly at the level of the individual families that are currently affected by problems with the recognition of parenthood and partially at the level of public authorities. The families currently affected by the problem would benefit from the costs saved for the recognition procedures themselves (as estimated above) but also from the reduction of other indirect economic impacts and costs and the social opportunity costs, such as those for travelling to take part in the legal procedures and the related loss of productivity. The families may also obtain some other indirect economic benefits as a result of the parenthood status recognition (for example, social and tax‑related benefits for families, as estimated above). This may lead to an overall improved welfare.

Nevertheless, despite the substantial positive (microeconomic) impact on individual families, the overall macroeconomic benefits of the PO2 and PO3 will be rather limited due to the limited share of cross-border families impacted by the problem.

2.26.6.2.5    Other impacts

2.27.6.2.5.1    Impact on digitalisation of justice and data protection

PO2 and 3 are both in line with the “digital by default” principle and the EU policy on digitalisation of justice 179 . In particular, the Regulation would provide for specific provisions on digitalisation of those procedures that are introduced by this Regulation and include the possibility of digital communication between individuals and Member States’ competent authorities. For instance, the ECP (under the PO3) and the procedure for its issuance would be digital‑ready. As a result, individuals would be able (but not obliged) to communicate through electronic means with national authorities competent to establish or recognise parenthood under the Regulation.

Moreover, the introduction of the new EU rules concerning the Parenthood recognition could also be a stimulus for the digitalisation of these processes at the Member States’ level, both by using less paper-based documents and moving to a fully electronic population registers 180 . The digitalisation of the procedure would further result in a higher security of the procedure and increased transparency as to the validity of the documents submitted when seeking recognition.

In addition, where the Regulation would provide a legal basis for the processing of personal data of natural persons (e.g. children or their parents with regard to the issuance and the use of the ECP), the protection of such data would be ensured in line with the General Data Protection Regulation 181 . The Member States’ authorities and the European Commission would act as data controllers responsible for the lawfulness of the processing. The Regulation would observe the principles applicable to the processing of personal data, including data minimisation 182 and purpose limitation.

2.28.6.2.5.2    Impact on the national identity of Member States 

In the consultation activities undertaken in the context of the impact assessment, especially in the feedback to the IIA, some respondents voiced their concern that the Parenthood initiative would negatively affect the prerogative of Member States in the area of family law 183 . The reasons given were a claimed lack of EU competence, the sensitive nature of this area and a possible interference of the Parenthood initiative with the constitutional and legal orders of Member States which do not regulate certain family formations (such as rainbow families) in their national law 184 .

The EU is based on the principle of respect for the social, historical and cultural diversity of the Member States, which is particularly manifested in the area of family law. It is thus for the Member States to define under their national law the concept of family and the rights and obligations derived from parenthood 185 . The measures adopted under Article 81(3) TFEU on family law with cross-border implications would thus not affect the competence of Member States to legislate in the family law area. To protect the rights of the children and their best interests in cross-border situations 186 , the Parenthood regulation would only propose rules to facilitate that, once parenthood has been established in one Member State under the applicable law designated by the Regulation, it is recognised in other Member States. These changes would not entail a harmonisation of the concept of family or harmonisation as to who can be considered a parent under the substantive national law of the Member State of recognition. In conclusion, the recognition of the child‑parent relationship established abroad does not undermine the national identity or pose a threat to the public policy (as already pronounced by the CJEU in the context of free movement 187 ) 188 . The Parenthood regulation thus heeds the principle that the EU is to respect the national identities of its Member States as laid down in Article 4(2) TEU.

2.29.6.2.5.3    Impact on Sustainable Development Goals (SDGs)

The POs 2 and 3 would have a minor positive impact on SDG No.10 – Reduced inequalities and on SDG No. 16 – Peace, justice and strong institutions. For details on how the policy options would contribute to progress on these goals, see Annex 3.

7.7.    How do the options compare?

Based on the detailed assessment of the policy options above, the table below provides an overview of the rating of each policy option. In multi-criteria decision analysis, the score was given to each policy option from -1 (negative impact) to 2 (very positive impact), (0 being the baseline), based on three criteria 189 .

The first criterion, effectiveness was defined as the extent to which the policy options achieve the policy objectives of the Parenthood initiative. Moreover, effectiveness also covers the impact on fundamental rights, social and psychological impact and impact on the exercise of the right to free movement of children and their families. Efficiency was defined as the extent to which the benefits of the policy option exceed its costs and includes the indicators such as compliance costs, and economic impact (excluding compliance costs and costs for recognition procedures, which are discussed separately). Finally, the last criterion of coherence assesses to which extent the policy options are aligned with other EU instruments, law and policies.

As regards effectiveness and efficiency of the policy options, the previous section includes a detailed explanation and assessment of these two criteria. As regards coherence, all policy options would be coherent with EU law (including the Charter and the CJEU case law) and the EU policies.

Figure 6: Comparison of options

8.8.    Preferred option

Based on the above analysis, Policy Option 3, whereby the EU would adopt a Regulation on the recognition of parenthood between Member States harmonising rules on jurisdiction, applicable law and recognition and including a European Certificate of Parenthood, is the preferred option.

This policy option would tackle the existing problems with the recognition of parenthood in the EU by harmonising both the PIL rules* on the establishment of parenthood with a cross‑border element and the rules on the recognition of parenthood in the EU. The Regulation would ensure that all children can benefit from the streamlined procedure for the recognition of parenthood regardless of the circumstances of their conception, birth or type of family. The Regulation would thus significantly simplify the current patchwork of often inconsistent national rules in the matter and would provide legal certainty to cross‑border families. The Regulation would include rules on the recognition of parenthood as recorded both in court decisions and in authentic instruments, and introduce a European Certificate of Parenthood as an option to provide evidence of parenthood in another Member State. Especially through the introduction of the ECP that would do away with much paperwork, the Parenthood regulation could be a game changer not only for families that currently experience problems with the recognition of parenthood but potentially for all cross-border families (estimated 4 452 135 mobile parents and their children) 192 . However, it is especially all those children and their families who are currently affected by the problems with the recognition of parenthood that are poised to benefit the most from the Parenthood regulation (estimated 103 000 mobile parents and their children).

Since the children’s fundamental rights may be jeopardised under the current situation and it is a priority to remedy this situation, the decisive focus should not be on the precise quantitative dimension of the problem or other quantitative considerations but on the protection of children’s fundamental rights in cross-border situations. The preferred PO3 achieves this general objective best in that it facilitates the recognition of parenthood between Member States, guarantees the respect for the fundamental rights of children in matters concerning parenthood recognition and ensures legal certainty, predictability, and continuity of parenthood. In addition, through the provision of an ECP that would have direct access to the national civil and population registers and do away with the current translation requirements, the PO3 is the most efficient option in reducing costs for recognition procedures and legal and administrative burden for both cross-border families and public administrations and judicial authorities. As a result, the costs for recognition procedures* for all children and their families in the EU are estimated to be about 71% lower under PO3 than under the status quo and this percentage grows to 90% for families currently experiencing the problems with parenthood recognition. As the Parenthood Regulation would reduce administrative burden on families and create no new one, it would represent a ‘one out’ initiative (For details, see the OIOO* methodology in Annex 3 and Annex 4) 193 . 

In terms of the other expected impacts, the preferred policy option would have in particular:

·A positive impact on the protection of fundamental rights of children and their families, including the exercise of the free movement rights;

·One-off adjustment costs for public authorities to adapt to the new rules provided in the Regulation and negligible recurring administrative costs 194 ;

·Positive social and psychological impact on children and their families.

While it is not possible to put a price tag on the added value of the Parenthood regulation, the quantifiable benefits, in particular those for children, are demonstrable and real. Besides the benefits for cross-border families and public authorities that the preferred policy option would bring about, rules on parenthood with cross‑border implications are the missing piece of puzzle in the existing EU legislation on family matters and the Parenthood regulation would thus complement the existing EU acquis.

The EU action would comply with the principles of subsidiarity, as detailed in Section 3. The PO3 would also fully respect the principle of proportionality. In that regard, the content and form of the Regulation would not go beyond what is necessary to achieve the recognition of parenthood between Member States and to protect children’s rights and best interests. There are no milder means that would achieve the policy objectives as effectively as the ones proposed under PO3 195 . The substantive scope of the Regulation would also be limited to what is necessary. For instance, the Regulation would only apply to the recognition of parenthood status and would leave out the recognition of the relationship between parents. The Regulation would not affect the rights that a child derives from EU law, in particular the rights that a child enjoys under EU law on free movement, including Directive 2004/38/EC 196 . The ECP that would be introduced by the Regulation would be an optional certificate that would not replace the national certificates of parenthood. The Regulation would also treat matters concerning parenthood as cultural‑sensitive issues that may touch on national identity of Member States and would thus not provide for any rules going beyond the PIL aspects of parenthood 197 .

9.9.    How will actual impacts be monitored and evaluated?

A robust system for monitoring and evaluation of the application of the Parenthood regulation would be implemented to ensure that the legislation is efficient in addressing the current problems and achieving its main objectives, as well as to assess what its actual impacts would be. To do so, continuous monitoring and regular evaluation by the Commission would take place after the Regulation comes into application.

In particular, the Commission would:

-discuss the application of the Regulation and exchange best practices with Member States in the framework of the EJN-civil*;

-continue monitoring latest trends and national law related to parenthood; and

-prepare evaluation reports as necessary on the application of the Regulation.

First, as a rule, the application of the EU legislation in the area of civil justice is monitored through regular meetings of EJN‑civil* and the Parenthood regulation would not be an exception. Thematic meetings of EJN-civil where the EJN contact points from Member States discuss the practical aspects of the application of the Parenthood regulation would be essential for assessing how the Regulation is applied in practice and what its impact is. EJN-civil would also help to address any potential practical problems that would arise with the application of the Regulation 198 .

Second, to keep the Regulation up-to-date and fit for purpose, the Commission would continue monitoring the latest trends in the Member States concerning the establishment of parenthood 199 .

Finally, a full evaluation of the application of the Regulation would be carried out by the Commission seven years after the Regulation enters into force with a view to assess the evolution of the impacts of the Regulation 200 . The evaluation would be done on the basis of input collected from the authorities of the Member States, external experts, and relevant stakeholders and literature, as necessary. As is the case for other EU legislation on family law with cross‑border aspects, a legal requirement on Member States to provide specific information relevant for the evaluation of the operation and application of the Parenthood regulation will be included in the Regulation 201 . In addition, the evaluation would be based on case law and, if available, on the findings from academic literature on the topic.

Figure 15 in Annex 8 provides suggested indicators for the evaluation of the functioning of the Regulation 202 . 

Annex 1: Procedural information

10.1.    Lead DG, Decide Planning/CWP references

Lead DG: DG JUSTICE AND CONSUMERS (“DG JUST”)

Decide Planning: PLAN/2021/10134 – Recognition of parenthood

11.2.    Organisation and timing

A Commission inter-services steering group (ISSG) was established in February 2021 for preparing the Parenthood initiative. It was chaired by Directorate-General Justice and Consumers (DG JUST). The following DGs and services participated at the inter-service group: Legal Service (SJ), Secretariat‑General (SG) and DG JUST (several relevant units). The ISSG met three times in the period from March 2021 to November 2021 and approved the Inception Impact Assessment on 30 March 2021.

Given the fact that the Parenthood initiative was included in the Commission work programme 2022 , the previous ISSG was replaced in November 2021, in line with the Commission working methods, with a new ISSG chaired by the Secretariat-General. The new ISSG had the same members. The new ISSG discussed and validated the Impact Assessment report at its meeting on 2 May 2022.

12.3.    Consultation of the RSB

Before the finalisation of the Impact Assessment report, DG JUST received advice from the members of the Regulatory Scrutiny Board (“RSB”) at an upstream meeting organised on 7 January 2022.

The Impact Assessment report was then examined by the Regulatory Scrutiny Board and received a positive opinion on 8 June 2022. In its opinion, the Board also provided suggestions as to possible improvements of the report. The table below shows how this report takes into account the main comments of the RSB.

Figure 7: Opinion of the Regulatory Scrutiny Board

13.4.    Evidence, sources and quality

In the preparation of this impact assessment, DG JUST consulted a wide range of experts and stakeholders and used several different methods to gather evidence.

·In particular, a Study by an external contractor* was commissioned to support the preparation of the impact assessment. The Study also included extensive overview of the law and practice concerning, among others, the national substantive law and PIL rules related to parenthood (Country reports*).

·Moreover, evidence used in this impact assessment was gathered based on a Commission’s consultation strategy, which included: (i) public feedback to the inception impact assessment; (ii) an open public consultation; (iii) a meeting with stakeholders 203 ; and (iv) and a meeting with Member States representatives. The results of these consultation activities are presented in Annex 2 of this report. In addition, DG JUST also considered, in the preparation of this report, the information and opinions provided by the public and stakeholders through letters addressed to the Commission and petitions.

·The external contractor employed the following stakeholder consultation tools specifically designed for the purposes of the study: (i) online survey targeting civil registrars in the EU; (ii) written questionnaires targeting national ministries and judiciary and (iii) targeted semi-structured interviews with judiciary and key stakeholders and NGOs 204 .

·DG JUST also received expertise through a collaboration with a COM Expert Group on the recognition of parenthood between Member States 205 . In 2021 and early 2022, the Commission held seven meetings with the experts, which helped to inform the development of policy options, especially the legislative ones.

·DG JUST also participated in meetings of an Experts’ Group on the HCCH Parentage / Surrogacy Project.

·Finally, DG JUST also gained further insight into the subject of this report with the help of available resources, such as existing literature, reports and studies.

Assumptions used in the report and its robustness

In general, the report was based on solid theoretical understanding gained in particular through desk research, collaboration with participants of the expert groups and research and data collection by the external contractor. Moreover, many stakeholders have shown great interest and willingness to share their views through the consultation activities described above. The report thus draws on that thorough feedback. All EU jurisdictions, except of Denmark, were represented in the consultations.

In contrast, the main difficulty in the preparation of the report was the limited availability of data on the subject matter, especially disaggregated data. For instance, the numbers of cross-border families affected by the existing problems had to be estimated based on several assumptions. The estimations were complicated by the fact that certain data is not collected at EU level either at all (such as the data concerning surrogacy arrangements) or not systematically given the sensitivity of the subject matter and data protection considerations (information concerning sexual orientation of persons 206 and consequently data concerning rainbow families). Representative data thus cannot be obtained. Moreover, the fact that most of the processes leading to the recognition of parenthood take place before local administrative authorities of Member States further complicated the collection of data. Indeed, while many Member States record statistical data concerning judicial proceedings, this is usually not done for administrative proceedings. It follows that data regarding the current number of cases as well as other relevant statistics is not readily available.

A lack of data was especially significant in relation to the existing problems related to the recognition of parenthood, in particular:

-the number of children and families affected by the problems related to the cross‑border recognition of parenthood (in each family constellation or scenario 207 and both before Member States’ administrative authorities and courts); the evolution of the number in the next decade;

-the current costs borne by cross-border families, public administrations, and the judiciary needed to process the requests for cross-border recognition of parenthood; breakdown of these costs; the evolution of the costs in the next decade;

-Member-State specific data that would allow credible assessment of the distribution of problems and impacts of the policy options in each Member State individually. 

oFirst, problems with non-recognition of parenthood may stem from the existing discrepancies between Member States’ applicable law rules on the establishment of parenthood in cross-border situations 208 . The problem of the parenthood non‑recognition may thus arise between all Member States. 

oBesides the first point, difficulties may further materialize where certain ways of family formation are not legally accepted in national law of a Member State. However, in individual cases, it is Member States’ public authorities (administrative or judicial authorities) that apply national law (or bilateral and multilateral agreements). They often do so in a way to comply with the obligations stemming from international law and to protect the best interests of children. Therefore, while national laws concerning parenthood could be an indication of Member States, which are more restrictive in recognising parenthood from other countries 209 , the differences between the letter of the law and the application of these laws make any such conclusions imprecise.

oMaking any definitive conclusions about the distribution of problems among Member States would also be complicated by the fact that parenthood recognition cases often take place before administrative authorities that often do not keep centralised records of the cases.

The work with data related to the problem definition was also complicated by the fact that the existing problems with the recognition of parenthood are diverse in their nature and often involve complex legal considerations.

These limitations as to the availability of accurate data were not surprising as they were also reported in other reports in the field 210 .

Assumptions used in the report

Given the existing data limitations, following assumptions and estimates have been used to inform the conclusions of the report:

Figure 8: Main assumptions used in the report

An extensive effort was made to address the data limitations and to provide a solid basis for this report. The data and evidence were obtained from multiple sources and through various tools 217 . Estimates were made based on the extrapolation of the available data and refined taking into account the insights gained through consultations and from other sources. The estimates were further validated based on discussions with experts. To factor in the ranges in costs volumes and other uncertainties, the report worked with ranges (with lower and upper bounds) to better reflect the reality.

The data limitations and assumptions did not have an impact on the selection of the preferred option as the preferred policy option was chosen based on multi-criteria analysis, with a particular focus on the effectiveness of the initiative in achieving its objectives, rather than on quantitative criteria.

Annex 2: Stakeholder consultation (Synopsis report)

The Commission conducted a consultation strategy to gather information from key stakeholders and Member State authorities on the prevalence of the current problems with the recognition of parenthood and their views on the possible EU‑level solutions to address these problems.

14.1.    Consultation strategy 

The Commission used multiple channels to target a wide range of stakeholders and a variety of tools to interpret the results 218 . Input was received from a wide range of key stakeholders representing EU and non-EU citizens, public authorities, academics, research institutions, legal professionals, NGOs and other relevant interest groups.

The Commission’s consultation strategy included four main consultation activities, each of them having a different running period, recipient and/or object. The consultation activities included (i) an Open Public Consultation (“OPC”); (ii) the evaluation of the feedback given to the Commission’s Inception Impact Assessment; (iii) meeting with stakeholders with a particular interest in the parenthood initiative; and (iv) a meeting with national experts from the Member States. Moreover, further consultations were undertaken in the context of the external study supporting the impact assessment 219 .

15.2.    Main stakeholder feedback per consultation activity

a)Open Public Consultation

OPC published on the Commission’s ‘Have your say’ portal from 19 May to 25 August 2021 resulted in 390 replies from: the public (352 individual respondents), public authorities (29 respondents), non-governmental organisations (19 respondents), academics or research institutions (5 respondents), business organisations (3 respondents), trade union (1 respondent) and other organisations (7 respondents) 220 .

The questionnaire was organised around four main pillars. The first concerned the current situation and problems relating to the non-recognition of parenthood in the absence of any EU level action. Most respondents were aware of instances where parenthood established in a Member State was not recognised in another Member State while a minority were not. The majority of respondents stated that the current status quo is a serious problem 221 , whereas, the second highest share of respondents stated that it is not.

Some respondents noted that the non-recognition of parenthood leads to the denial of rights of the child and/or obligations derived from parenthood. Among the most commonly mentioned consequences of the non‑recognition of parenthood were the denial of parental rights to act as the legal representative(s) of the child, problems with the issuance of documentation necessary for a child to obtain nationality, and a negative impact on the social advantages or on the child’s inheritance were also reported. Ultimately, as a result of the non-recognition of parenthood, families were reportedly dissuaded from travelling with their child within the EU or from moving to another Member State.

The second block of questions concerned the procedural hurdles in the procedures for the recognition of parenthood. The majority of respondents that replied to these questions indicated that the main problem was that the recognition procedures before administrative authorities was excessively lengthy, mostly stating that the length of the administrative procedure was 12 to 24 months. The average estimated costs for recognition procedures before administrative authorities varied significantly from recognition being free of charge in some Member States to reaching 12.000 EUR in some cases 222 . Respondents also reported that some cases required bringing a case to court. 27% indicated that the estimated length of court proceedings for the recognition of parenthood was more than two years. The costs for such proceedings ranged between 0 and 25.000 EUR.

The third pillar was dedicated to the reactions on the possible EU initiative to facilitate cross‑border recognition. The majority of respondents, essentially EU-citizens and public authorities, agreed to the Commission proposing a legislative initiative on the recognition of parenthood between Member States. However, a considerable minority (33% of respondents, most of which were Slovak citizens) disagreed, mostly stating that the recognition of parenthood should be a matter regulated only by Member States.

Regardless of their views on the possible adoption of EU legislation on the recognition of parenthood, most of the respondents considered that the EU should play a role in promoting cooperation on the matter between public authorities (such as by organising judicial training or thematic meetings in the framework of the EJN-civil, by issuing guidance on parenthood recognition to Member States or by raising citizens’ awareness about the existing problems). Nevertheless, a minority (30% of respondents) indicated that the EU should play no role in such matters.

As regards questions concerning the details of the possible EU legislative initiative (for instance the applicable law), the views showed no particular convergence. Finally, 41% of the respondents considered that an introduction of a possible European Certificate of Parenthood (“ECP”) would be useful and its inclusion in the legislative instrument should be a priority. On the other hand, 37% of the respondents (almost all of them being Slovak citizens) indicated that they would not support an ECP, as the currently available national documentation is sufficient.

The fourth and final pillar examined the impact of the possible EU legislation on the recognition of parenthood between Member States. A majority of respondents indicated that such legislation would have a very positive impact on children’s fundamental rights and welfare (including emotional and psychological wellbeing) and in facilitating the exercise of the right of children to travel and move within the EU with their families. Legal certainty, for both families and public authorities, would also be ensured as a result of the introduction of the legislation according to the majority of the respondents. Finally, according to the majority of the respondents, the legislation would decrease the costs, time and burden for families as well as for national judicial systems.

b)Feedback on the Inception Impact Assessment

In addition to the OPC, the Commission also collected feedback to the Inception Impact Assessment (“IIA”), which was published in April 2021 with a double objective: (i) to inform citizens and stakeholders about the Commission’s plans to adopt an initiative on parenthood recognition in cross-border situations and (ii) to allow them express their views on the Commission’s understanding of the problem and possible solutions.

The feedback to the IIA consisted of 760 responses from a wide range of stakeholders composed of EU and non-EU citizens (725 respondents), academic and research institutions (3 respondents), business associations (2 respondents), non-governmental organisations (27 respondents) and other organisations (32 respondents). The majority of respondents came from Central Europe. At least one e-mail and one online campaigns encouraging the public to criticise the initiative in the context of IIA feedback were detected.

The overall tendency of the received feedback was rather negative. A majority of respondents, mostly from Hungary, the Czech Republic, Slovakia, Poland and Germany disagreed with the Commission’s intention to adopt a legislative measure on the recognition of parenthood between Member States. The reason for such disagreement was most often the opinion that the EU does not have a competence to adopt such a legislation or should not do so given the sensitivity of the area. Some of those respondents also opined that the initiative, if adopted, would interfere with substantive family law, which is a national competence of Member States. According to some of those respondents, parenthood should only be recognised in cases where the family is composed of opposite‑gender parents.

In contrast, other respondents to the IIA highlighted that an initiative on the recognition of parenthood between Member States would be crucial to ensuring children’s rights and fundamental rights. The contributions supporting the parenthood initiative came mainly from Luxembourg, Belgium, Spain, Croatia, Finland and France. Some of these respondents considered that the parenthood initiative would be important in guaranteeing non‑discrimination and facilitating free movement in the EU. Other respondents pointed out that this initiative is crucial for the protection of child’s fundamental rights. The most frequently mentioned consequences of non-recognition of parenthood were those related to the acquisition of nationality, to the exercise of parental rights and rights derived from parenthood, to social security, health care, travelling and free movement.

Many contributions from both citizens and organisations touched upon surrogacy. Mixed opinions were expressed. Some participants argued that no distinction or discrimination should be made between children based on the way in which they were born, whereas others expressed their disagreement to recognising parenthood in cases of surrogacy mostly referring to human dignity and the violation of women’s fundamental rights as a result of surrogacy.

c)Meeting with stakeholders

As a part of the Commission’s consultation strategy, an informal meeting with stakeholders was organised on 14 December 2021. It gathered participants from around 25 umbrella organisations representing a variety of interests, such as organisations representing children, rainbow families and families composed of opposite‑gender parents, religions, legal practitioners and registrars, and participants from the European Parliament and from international organisations, such as the Council of Europe, the ICCS and the International Social Service. The discussion focused on two main blocks: (i) existing problems with the recognition of parenthood in the EU and (ii) possible solutions to those existing problems.

Regarding the first part of the meeting, the participants were encouraged to elaborate on the problems existing with the recognition of parenthood between Member States. Most participants agreed that problems with the recognition of parenthood exist; however, they were of different views regarding the scale of the problem. In particular, participants representing children, legal professionals and rainbow families considered the existing problems and its consequences as particularly serious.

In the second part of the meeting, possible solutions to tackle the non-recognition of parenthood between Member States were addressed. It was discussed whether and how children’s rights can be protected in cross-border situations involving the recognition of parenthood in the absence of any EU-level action.

As regards the possible EU-level measures to tackle the problems with the non-recognition of parenthood, no convergence could be found. The participants from the European Parliament and representatives of lawyers and registrars were of the view that EU legislation is needed to facilitate the recognition of parenthood. In their view, the legislative measure would ensure legal certainty and clarity for families and public authorities and reduce costs and length of recognition procedures. Participants representing children and rainbow families welcomed the EU action in this area, highlighting that they considered crucial to solve the adverse consequences caused by the non-recognition of parenthood.

On the other side of the spectrum, stakeholders representing mostly heterosexual families were sceptical towards any initiative and in particular the legislative policy option. Reasons given for such disagreement were the claimed interference of an EU initiative with national family law systems, the sensitive nature of this area, as well as the concerns related to surrogacy arrangements. Some participants questioned whether a “one-size-fits-all” legislation was needed, given recent CJEU case law, as well as other instruments at international and EU level on child-related matters.

It was generally acknowledged that non-legislative measures, such a greater cooperation between public authorities could be desirable regardless of the possible adoption of a legislation on the recognition of parenthood; however, many participants believed that these measures would not solve most of the problems with recognition of parenthood.

d)Meeting with Member States

On 25 January 2022, the Commission organised a meeting with experts from Member States’ public authorities to provide information about the parenthood initiative and to exchange initial views thereon. Almost 100 participants from 26 Member States attended the meeting, representing various public authorities and ministries. 11 Member States took the floor during the meeting.

In a similar way to the meeting with stakeholders, the Commission structured the meeting along the following blocks: (i) existing problems with the recognition of parenthood in the EU and (ii) possible solutions to those existing problems.

In the first block, Member States explained, from their national point of view, how they deal with the recognition of parenthood and whether they had encountered any problems with the recognition. Several Member States noted that formal recognition of parenthood is mostly needed in procedures for granting a nationality to a child that was born to (a) national(s) of that Member State abroad. Several intervening Member States reported that they were not aware of particular problems related to parenthood recognition in their jurisdiction. However, a number of Member States mentioned that they were aware of problems that their citizens encountered abroad. Some mentioned that parenthood would not be recognised under certain circumstances in their jurisdiction. The main problems with the recognition were seen in cases involving rainbow families and/or in relation to surrogacy arrangements.

During the second part, Member States expressed their initial positions regarding the possible solutions to the existing problems with the recognition of parenthood between Member States. Most agreed that children and their rights and best interests need to be in the focus of any initiative at the EU-level. Non-legislative measures, such as more cooperation and exchanges between authorities, were also supported by most Member States – whether to complement a legislation or as the only measure undertaken. In contrast, the views on the desirability of an EU legislation on the recognition of parenthood between Member States were divided. The following two trends were identified:

First, a majority of Member States that intervened in the meeting supported legislation. Most took the view that any legislation should cover both court decisions and authentic instruments (such as birth certificates). Some advocated the adoption of the ECP. According to those Member States, a legislative instrument at EU level would be desirable especially in view of the increasing number of cross‑border families that may experience problems with the recognition of parenthood.

In contrast, some Member States adopted a sceptical position towards legislation. They were either of the opinion that problems with the recognition of parenthood in the EU are not significant or that their national law addresses them sufficiently. One Member State stated that EU legislation would be contrary to its Constitution.

More than half of participating Member States did not express their views concerning the parenthood initiative during this meeting 223 . All views expressed in the meeting were preliminary and served solely to inform the preparation of the initiative.

Annex 3: Who is affected and how?

16.1.    Practical implications of the initiative

17.1.1     Cross-border families and their children in the EU

The problems with the recognition of parenthood affect children and their families in cross‑border situations. The 103 000 mobile parents and their children that are affected by the problem of non-recognition may face precarious situations in Member States which are refusing to recognise their civil status. As a result, children and their families may be deprived of rights related to parenthood status (such as the child’s succession or maintenance rights), fundamental rights, or social and economic advantages derived from parenthood. They may also be deterred from pursuing personal and professional advantages on the internal market and moving freely within the EU for the fear that their status would not be recognised in some Member States. They may have to bear large costs for recognition procedures that are on average 16 times higher than those in non-problematic cases.

Under the preferred policy option, the problems with parenthood recognition would be significantly mitigated through the adoption of uniform rules on the establishment of parenthood with cross-border implications and on the recognition of parenthood between Member States. The preferred option would thereby significantly reduce the incidence of problems and their negative consequences.

In addition, through the introduction of the European Certificate of Parenthood, all families stand to benefit, not only those that currently experience problems with parenthood recognition. The ECP would do away with most current costs, thus reducing the costs for recognition procedures by almost 70% for all cross‑border families.

18.1.2    Member States’ public authorities (public administrations and judiciary)