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. Term or acronym Meaning or definition Adoption A process whereby a person or persons take(s) on the parenthood of another, usually a child, from that person’s biological or legal parent(s). The legal effects of parenthood established by adoption are in principle the same as those of biological parenthood. -Domestic adoption Adoption of a child or an adult habitually resident in one country by (a) prospective parent(s) habitually resident in that same country. Domestic adoption is solely governed by the national adoption laws of the country that grants it. -Intercountry adoption Adoption of a child or an adult habitually resident in one country by (a) prospective parent(s) habitually resident in another country. It typically implies a change of the habitual residence of the child in question. With respect to intercountry adoptions, it should be noted that all EU Member States are party to the HCCH 1993 Intercountry Adoption Convention *. -Simple adoption In some jurisdictions, simple adoption is an adoption that does not have the effect of terminating a pre‑existing legal child‑parent relationship between a child and its biological parent(s), while it establishes parenthood of (an) adopter(s) to the child. AG Advocate General of the CJEU. Applicable law rules Provisions designating, on the basis of certain criteria (known as connecting factors), the law applicable to a situation in which the laws of different jurisdictions may apply. ART, Assisted Reproductive Technologies In this report, any method used to achieve conception involving artificial or partially artificial means and which is undertaken by a medical/health clinic or institution. Two most common ART methods are artificial insemination and in-vitro fertilisation. Authentic instrument For the purposes of this report, a document on parenthood formally drawn up or registered as an authentic instrument in any Member State and the authenticity of which: (a)relates to the signature and the content of the instrument; and (b)has been established by a public authority or other authority empowered for that purpose. Authentic instruments can establish parenthood (such as a notarial act on adoption) or provide evidence of parenthood (such as a birth certificate). Birth certificate A document certifying the live birth of a child and typically also recording other information, such as the parenthood of the child, date and place of birth and other vital statistics relating to the child. Brussels IIb Regulation Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction, OJ L 178, 2.7.2019, p. 1–115. Subject to certain transitional provisions, it will repeal the Brussels IIa Regulation as of August 2022 (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, OJ L 338, 23.12.2003, p. 1 29). Charter Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012. Child In this report, “child” means a person of any age whose parenthood is to be established or recognised, i.e., depending on the context: a)any person regardless of their age in relation to which parenthood is considered ; or b)a person under the age of 18 years old in relation to which parenthood is considered. CJEU Court of Justice of the European Union. CoE Council of Europe. COM European Commission. COM Expert Group Expert Group on the recognition of parenthood between Member States set up by DG JUST in 2021 to receive expert advice on the preparation of an initiative on the recognition of parenthood between Member States. For more information about the Expert Group, see the Register of Commission Expert Groups and Other Similar Entities . Compliance costs In this report, direct costs related to a possible EU intervention. These costs include in particular adjustment costs, i.e. investments and expenses that public authorities have to bear to adjust their activity to the provisions included in the EU policy intervention (in particular training costs for public authorities and lawyers). Costs for recognition procedures Direct costs related to administrative and court procedures for the recognition of parenthood, incurred under the baseline and all policy options, by: -cross-border families (e.g. translation costs, administrative and court fees for recognition procedures, fees for evidence and DNA tests, costs for legal representation etc.); -Member States’ public authorities (e.g. staff-related costs, costs for translations and interpreters etc.). Country reports Country Reports were compiled by an external contractor* in collaboration with Spark Legal Network in the context of the Study by an external contractor*. The reports were based on a questionnaire completed by 26 national legal experts. Cross-border family A family with children in which one or more members are of different nationalities or live in a country other than their country of origin. Digitalisation proposal The Commission’s proposal for a regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation. COM (2021) 759. DG JUST Directorate-General for Justice and Consumers of the European Commission. ECHR European Convention of Human Rights (Council of Europe). The ECHR and related case law binds Member States. In addition, the Court of Justice of the EU applies the ECtHR case law indirectly, as a part of the general principles of the EU law. ECtHR European Court of Human Rights. ECP European Certificate of Parenthood. EJN-civil European Judicial Network (in civil and commercial matters): network of judicial authorities and other national authorities (ministries of justice, notaries, enforcement officials) involved in the application of the EU instruments in civil and commercial matters and set up to facilitate judicial and legal cooperation between Member States in cross-border civil and commercial matters. EJN-civil meets several times a year to discuss the application of these EU instruments or other matters related to civil and commercial justice in the EU. e-Justice Portal European e-Justice Portal: EU portal that provides information to the public in all EU languages on EU law and national justice systems in civil, family and commercial matters. EAVA report on the recognition of adoptions European Parliament (2016). Cross-border recognition of adoptions – European Added Value Assessment . It presents estimates on the possible added value of taking legislative action at EU level related to cross-border recognition of adoptions. It identifies costs borne by EU citizens as a result of the absence of an EU regulation on automatic recognition of adoption decisions. It forms a basis for the European Parliament resolution of 2 February 2017 with recommendations to the Commission on cross border aspects of adoptions (2015/2086(INL)). Enforcement costs Costs associated with activities linked to the implementation of the Parenthood initiative (such as monitoring and litigation). EUR/€ Euro. EU European Union. EU-26 All Member States of the European Union with the exception of Denmark. External contractor ICF Consulting SA. The external contractor prepared a study that supported the preparation of this report. Family For the purposes of this report, a group of one or more parents and their children. NB: Substantive family law falls within the competence of Member States. Accordingly, no EU instrument in the area of judicial cooperation in civil matters contains a definition of “family”. -Rainbow family For the purposes of this report, a family that consists of parents of the same gender bringing up a child, or an LGBTIQ+ parented family. Free movement, free movement right Right to move and reside freely within the territory of the Member States as provided for in Articles 21, 45, 49 and 56 TFEU, Directive 2004/38/EC and relevant case law of the CJEU. FTE Full-Time Equivalent. Ground for refusal, refusal ground A reason that can be invoked to refuse the recognition of a judgment or an authentic instrument. Hague Conference on Private International Law, HCCH Intergovernmental organisation with its seat in The Hague, which is working for the progressive unification, by means of international conventions, of the rules of private international law. The HCCH has currently 91 members: 90 states and the EU. Hassle costs For the purposes of this report, costs for families resulting from delays and unnecessary waiting times related to the procedures for the recognition of parenthood of a child. HCCH 1993 Intercountry Adoption Convention Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption . It governs adoption where the adoptive parents and the child have their habitual residence in different States. It lays down substantive safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for the child’s fundamental rights. Under the Convention, every adoption which is certified to be made in accordance with the procedures set out in the Convention is recognised “by operation of law” in all other Contracting Parties (Art. 23). All EU Member States are party thereto. HCCH Parentage / Surrogacy Project A project undertaken by the HCCH* to study and address the issues encountered in relation to the legal parentage of children and international surrogacy arrangements. In the context of this project, meetings of an Experts’ Group have been organised since 2016 to explore the feasibility of advancing work in this area. The work of the Experts’ Group focuses on developing (i) a general PIL* instrument on legal parentage; and (ii) a separate protocol on legal parentage established as a result of international surrogacy arrangements. A report of the Expert Group on the feasibility of work in this area is due in 2023. IA Impact Assessment. ICCS/CIEC International Commission on Civil Status/Commission International de l’État Civil. Intergovernmental organisation based in Strasbourg whose aim is to facilitate international co-operation in civil-status matters and to further the exchange of information between civil registrars. To this end, it has adopted conventions and recommendations. Intending parent(s) A person or persons who request(s) a surrogate mother to carry and give birth to a child for them. IVF In Vitro Fertilisation. ISA International Surrogacy Arrangement. ISSG Inter-Services Steering Group. Jurisdiction The power conferred upon a court or tribunal to hear a specific case; international jurisdiction is the competence of the courts of a particular country to hear a case. LGBTIQ Lesbian, Gay, Bisexual, Transgender, Intersex and Queer. Limping parenthood Situation in which a child has, from a legal viewpoint, different parents in different States as a result of the fact that two States answer the question “who is a parent of this child” in a different manner. It includes situations where the legal parenthood by one parent, as established in one State, is not recognised in another State. Lower bound, upper bound In this report, lower and upper bounds represent the smallest and biggest value between which the exact value can be found. They are mostly used when quantifying costs (since the costs usually differ Member State to Member State and case by case). Maintenance Regulation Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ L 7, 10.1.2009. Maintenance rights In this report, maintenance rights are all rights to receive maintenance or alimony arising to a child from its family relationship or affinity. Notably, the Maintenance Regulation does not define the term “maintenance rights”. Member State, MS Member State of the European Union. NB: In this report, this normally excludes Denmark (see fn. 5). Member State of (non‑)recognition Member State where the recognition of parenthood is sought. National certificate of parenthood A national authentic instrument on parenthood, for instance, a certificate of birth, a certificate of parenthood or a notarial act establishing or providing evidence of parenthood. NGO Non-governmental organisation. OIOO / One in, one out One in, one out. The one in, one out approach requires offsetting new burdens resulting from a Commission proposal by reducing existing burdens in the same policy area. OIOO costs savings Costs saved by families under the Policy Option 3 that can qualify as cost savings under the one in, one out approach. These cost savings concern only savings on administrative costs, such as costs for translations, supporting documentation and evidence, and thus do not include the savings on administrative fees and court fees and costs for legal representation. For details, see Annex 4: Costs reduction estimates under the ‘One in, one out’ approach. OPC Open Public Consultation conducted from the Commission’s “Have your say” portal between 19 May 2021 and 25 August 2021 to gather data and the views of stakeholders with regard to a possible initiative on the recognition of parenthood. See the Summary Report here: https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12878-Recognition-of-parenthood-/public-consultation_en and in Annex 9. Parentage A child-parent relationship that indicates the descent from parents or ancestors and which is closely linked to bio-genetic affinity. Parenthood A parent-child relationship established in law. It includes the legal status of being the child of a particular parent or parents. This civil status is particularly relevant to a person’s identity, and other rights and obligations derived from it. For the purposes of this report, parenthood is to be understood as legal parenthood (see below). It may or may not correspond to the social or biological parenthood. Even though the term “parenthood” does not fully bring out the child‑centred perspective of the initiative, it was chosen for this report as it corresponds to the terminology used in other EU family-law legislative instruments. -Biological parenthood Bio-genetic affinity between a child and its father and mother whose DNA the child carries. -Social parenthood It relates to the actual act of taking care of a child as a parent. -Legal parenthood The child-parent relationship established in law. It may be attributed on a number of grounds besides bio-genetic affinity. Parenthood initiative For the purposes of this report, it refers to any of the possible policy options that the Commission may undertake to facilitate the recognition of parenthood between Member States. Parenthood regulation, Regulation For the purposes of this report, it refers to the legislative policy option, i.e. legislation on the recognition of parenthood between Member States. (See Section 5 of this report). PIL, Private International Law A branch of law governing which rules are to be applied in cases with an international dimension and dealing with the resolution of conflicts between the jurisdictions and applicable laws of different States. In this report, it refers to applicable law rules, jurisdiction and, where relevant, rules on the recognition of parenthood. PO Policy Option. Public authorities For the purposes of this report, it is to be understood broadly as any authorities competent, under national law, to establish, record or register the parenthood of a child and/or to recognise parenthood established abroad. Public authorities thus include administrative authorities (civil registrars and municipalities), courts, notaries, or consulates. Recognition For the purposes of this report, recognition of parenthood should be understood broadly as any legal technique that makes a parenthood status that has been acquired abroad, i.e. formed/conferred in accordance with the laws of another State, valid also as regards the recognising State. Recognition does not have to involve any formal procedure for recognition and can be automatic. In particular, recognition and acceptance of authentic instruments is not differentiated in this report and ‘recognition’ should thus refer to both legal concepts. Recommendation A non-binding act that can be adopted by the European Commission and that does not have legal consequences but provides guidance to Member States on a certain matter. In this report, “Recommendation” also refers to Policy Option 1, i.e. Commission Recommendation addressed to the Member States. Reference period Period for which the impacts are assessed, i.e. years 2022-2032. Registered partnership A legal family format that is constituted in a procedure that results in a registration in a public register. In the Regulation (EU) No 2016/1104 also defined as: The regime governing the shared life of two people which is provided for in law, the registration of which is mandatory under that law and which fulfils the legal formalities required by that law for its creation. Regulation on Public Documents Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union, OJ L 200, 26.7.2016, p. 1‑136. Rights derived from EU law In its V.M.A. case, the CJEU held that Member States are required to recognise parenthood for the purposes of permitting a child that has the nationality of a Member State to exercise without impediment, with each of its two parents, the right to move and reside freely within the territory of the Member States as guaranteed in Article 21(1) TFEU and, in that context, rights which the child derives from EU law (paras. 49 and 57 of the V.M.A. case). For other rights derived from EU law, see fn. 33. These rights can be exercised irrespective of recognition in the law of the host Member State. The only condition is that there be a “child” of an EU citizen, within the meaning of Article 2(2)(c) of Directive 2004/38/EC, as established in a Member State. RSB Regulatory Scrutiny Board. SDGs United Nations’ Sustainable Development Goals. The 17 SDGs are at the heart of the 2030 Agenda for Sustainable Development, adopted by all United Nations Member States in 2015. Study by an external contractor, Study ICF (2022). Study to support the preparation of an impact assessment on a possible Union legislative initiative on the recognition of parenthood between Member States – Final report. The Study was commissioned by DG JUST to gather information for this impact assessment. Succession Regulation Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, OJ L 201, 27.7.2012, p. 107–134. Summary Report Report summarising the results of the Open Public Consultation*, available at: https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12878-Recognition-of-parenthood-/public-consultation_en and in Annex 9. Surrogacy, surrogacy arrangement An agreement: i) between a prospective surrogate mother and (an) intending parent(s); ii) made before a child is conceived; iii) which provides that, following the child’s birth, the parties plan for the intending parent(s) to be the child’s legal parent(s), and for the surrogate mother to surrender the child into their care. -Altruistic surrogacy A surrogacy arrangement where there is no payment to the surrogate mother or, if there is payment, it is only for reasonable expenses associated with the surrogacy. -Commercial surrogacy Commercial (or for profit) surrogacy exists where the surrogate mother agrees to provide gestational services and/or to legally and physically transfer the child, in exchange for remuneration or other consideration. One indication of commercial surrogacy is the involvement of for-profit intermediaries . Surrogate A woman who agrees to carry and give birth to a child for (an) intending parent(s). TEU Treaty on European Union. TFEU Treaty on the Functioning of the European Union. Third country / third countries Country/ies which are not members of the EU. UN United Nations. UNCRC United Nations Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989 (United Nations Treaty Series, vol. 1577, p.3). CJEU case law cited in this report Casagrande Judgment of the Court of 3 July 1974, Casagrande v Landeshauptstadt München, C‑9/74, ECLI:EU:C:1974:74. Cristini Judgment of the Court of 30 September 1975, Cristini v S.N.C.F, C-32/75, ECLI:EU:C:1975:120. Coman Judgment of the Court of 5 June 2018, Coman and Others, C-673/16, ECLI:EU:C:2018:385. Commission v Austria Judgment of the Court of 16 June 2022, Commission v Austria¸ C-328/20, ECLI:EU:C:2022:468. Even Judgment of the Court of 31 May 1979, Even¸ C-207/78, ECLI:EU:C:1979:144. Freitag Judgment of the Court (Second Chamber) of 8 June 2017, Freitag, C-541/15, ECLI:EU:C:2017:432. Garcia Avello Judgment of the Court of 2 October 2003, Garcia Avello, C-148/02, ECLI:EU:C:2003:539. Grunkin and Paul Judgment of the Court of 14 October 2008, Grunkin and Paul, C‑353/06, ECLI: EU:C:2008:559. K.S. Order of 24 June 2022, Rzecznik Praw Obywatelskich, C-2/21, ECLI:EU:C:2022:502. Matteucci Judgment of the Court of 27 September 1988, Matteucci v Communauté française de Belgique, C-235/87, ECLI:EU:C:1988:460. Meeusen Judgment of the Court of 8 June 1999, Meeusen, C-337/97, ECLI:EU:C:1999:284. V.M.A. Judgment of the Court (Grand Chamber) of 14 December 2021, V.M.A. v Stolichna obshtina, rayon “Pancharevo”, C‑490/20, ECLI:EU:C:2021:1008. V.M.A. Opinion Opinion of Advocate General Kokott delivered on 15 April 2021 in case V.М.А. v Stolichna obshtina, rayon “Pancharevo“, C-490/20, ECLI:EU:C:2021:296. ECtHR case law cited in this report A.D.- K. v. PL Advisory Opinion Labassee v. FR Marckx v. BE Mennesson v. FR Negrepontis‑Giannisis v. EL Paradiso and Campanelli v. IT S.-H. v. PL Schlittner-Hay v. PL Valdís Fjölnisdóttir v. Iceland Wagner v. LU 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. 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). 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). 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 , 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).

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 and by using differing procedures. Currently, various public authorities are involved in establishing and subsequent registering of parenthood at national level. 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. 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. 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 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. 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. 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). 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”. 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 or born through surrogacy arrangements abroad. 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. 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. 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. Box 1: V.M.A., C-490/20, 14 December 2021 The case concerned a child born in Spain to a British mother and a Bulgarian mother (V.M.A.) living in Spain. Spain issued a birth certificate mentioning both mothers as the child’s parents. Since a birth certificate issued by the Bulgarian authorities was necessary to obtain a Bulgarian identity document or passport, V.M.A. applied for the issuance of a birth certificate for their child in Bulgaria. Without an identity document or a passport, the child would not be able to exercise its free movement rights. The Bulgarian authorities refused to issue a birth certificate, inter alia on the ground that the registration of a birth certificate with two female parents was contrary to Bulgarian public policy. The mothers challenged such a refusal. The court seised asked the CJEU whether EU law obliges a Member State to issue a birth certificate, a passport or an identity document, to its own citizens born in another Member State and whose birth certificate issued by the host Member State mentions two mothers. In its ruling, the CJEU stated that EU law requires all Member States to recognise parenthood for free movement purposes, i.e. to enable the child to exercise, with each of her parents, her right of free movement. While EU law does not require the Member State of nationality of the child to issue a new birth certificate for the child, it does require it to issue a passport or an identity document enabling the child to exercise free movement rights with both parents. The parents must also be issued with a document that enables each of them to travel alone with the child. 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 . 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. 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, 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.

Another case, K.S. , 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 , by petitions addressed to the European Parliament and by citizen letters addressed to the Commission . 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 , 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 . 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 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 and the LGBTIQ Equality Strategy 2020‑2025. 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. 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 and of 5 April 2022. 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”. 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. 2.2. Problem Definition Families are increasingly mobile as they move and travel between Member States. 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 and judicial proceedings , 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) 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; 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. 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 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. In the majority of Member States, if formal recognition of parenthood is needed, it is entrusted to administrative authorities, such as civil registrars. Most Member States reported that the process and costs for the recognition of parenthood before the administrative authorities are not burdensome as such. 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. 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. 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 . 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. 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 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. 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. 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. 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, 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. Indeed, as a general rule, the best interests of children entail maintaining family unity, 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, including on its nationality (when in national law nationality is based on ius sanguinis) and – in spite of the clear CJEU case law - a surname. ·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. 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. While cases of statelessness are rare, 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 show that where parenthood was not recognised, some families faced problems with the access to family- or child- related social or tax advantages. Nevertheless, the EU acquis grants equal treatment to EU citizens in free movement and their family members with respect to these advantages. ·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, 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. 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. 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, 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. 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. The costs of such administrative proceedings borne by families vary greatly and may include: i) administrative fees; 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. 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. The additional costs may include, in particular: i) court fees; 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. 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 . 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 , 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. 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). 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. Some Member States apply an applicable law test, others apply a jurisdiction test 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. 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. 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; (ii) scientific progress in the field of reproductive technology; 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). 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. ·Rainbow families It is estimated that there are around 100 000 mobile LGBTIQ parents and their children in the EU. 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. 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. 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). 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. ·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. Box 2: Example of a problem scenario for opposite-gender parents (from Annex 7): A child is born to a married woman, a national of Member State B, who is habitually resident with her husband (also a national of Member State B) in Member State A. The husband is aware that the child is not genetically his. Substantive family law of Member State A uses a common legal presumption that husband of the child’s mother is the father of the child and thus attributes paternity to him. The couple divorces several years later in the Member State A. To avoid maintenance obligations, the husband disproves his paternity to the child during the divorce proceedings. However, according to the law of Member State A, a parent can only contest their legally established parenthood within two years after he became aware of the facts which indicate that the child may not be biologically his. Given the time bar on contesting parenthood in the national law of Member State A, the husband cannot contest his paternity and remains the legal parent of the child. Following the divorce, mother of the child moves with the child to Member State B. Her former husband brings proceedings in that Member State for the non-recognition of his paternity to the child. There is no time bar on challenging paternity under the national law of Member State B and, with the help of DNA testing proving that the child is not genetically his, he is successful with his non-recognition action. As a result, the child has two legal parents from the perspective of Member State A and only one parent, the mother, from the perspective of Member State B. For further examples of problem scenarios, see Annex 7. The results of the OPC, as well as case law, 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, it appears that such problems do persist and may be even growing in number given the global increase of the surrogacy phenomenon. 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. However, statistics relating to surrogacy are not available, as there are generally no formal reporting mechanisms. 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. 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) . 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 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. 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. The increased incidence of the problem in the future is also caused by the external factors, such as the greater diversity of families, (likely) leading to a greater divergence of national family laws; future advances of reproductive technology; 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. 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, 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, 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. 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. 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*. 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). 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 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) Estimated costs for Lower bound* Upper bound* - cross-border families 668 1 299 - public authorities 603 686 Total 1 271 1 985 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 . 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. 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. 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. 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. In addition, Ireland would only be covered by the legislative policy options if it decides to opt in . 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 . 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. 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 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. 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 and in 2022, it welcomed that the Commission announced to put forward a legislative proposal on the recognition of parenthood between Member States .

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. 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. 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. 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 th