Joanna Lemańska
Judge Supreme Court of the Republic of Poland
PhD hab. Jagiellonian University
Determination of the filiation status of a child born under a surrogacy agreement in relation to the child’s nationality
New developments in biomedicine, while a source of great hope, also carry significant risks. As genetic engineering continues to advance before our very eyes, newly created life is increasingly subject to selection, sorting and instrumentalisation. Its form, and even very existence, is increasingly determined not by the Creator/fate/nature/chance, but by the predetermined preferences of third parties[1]. Among these phenomena, surrogacy is becoming increasingly common.
The essence of surrogacy rests on the use of a woman’s reproductive capacity, pursuant to an agreement with another person or persons, to give birth to a child over whom someone else will assume the relevant rights and obligations[2]. As a result, the natural bond between the mother and the child she has given birth to is severed. A distinction is made between full surrogacy[3] and partial surrogacy, also known as traditional surrogacy[4]. In the remainder of this paper, I will focus on full surrogacy, which assumes no genetic link between the child and the surrogate mother, a form of surrogacy where the issues under discussion are particularly pronounced. The fact that, in such cases, the surrogate mother’s role is limited to making her uterus available, without providing a female reproductive cell, suggests to some that the child is in fact the child of the intended mother, to whom – together with her husband, who may also be the donor – the genetic heritage of the future child belongs, and not that of the surrogate mother, who is merely agreeing to the use of her uterus for the purposes of gestation. Other configurations of this scenario are also possible.
Thus, the circle of the child’s potential parents is expanded. In the case of surrogacy, the term mother has at least four different contexts (genetic, biological, social, and legal). The father, in turn, may be defined as the sperm donor, the intended man, or the husband of the intended woman.
Therefore, surrogacy represents a paradigm shift with regard to the institution of parentage. Until now, certain fundamental assumptions have traditionally been accepted. The moment of a child’s birth, in a certain sense, activated the parents’ parental authority in relation to the child. Since ancient times, it has been accepted that the mother is the one who gives birth (mater semper certa est), which ensured certainty regarding the identity of the newborn[5]. Establishing the child’s parentage traditionally had a significant impact on determining paternity, because once the mother was known, it was possible to establish who the father was. In the case of the father, a different principle applied, i.e. pater semper incertus, which was reflected in the many ways in which a man’s paternity could be established (a system of legal presumptions, the possibility of acknowledging the child, judicial establishment of paternity, etc.). Nevertheless, motherhood has always constituted a prerequisite for the establishment of paternity, which means that until a woman’s motherhood is determined, paternity cannot be established with respect to a child whose mother is unknown, even if the paternity of a particular man is beyond doubt. However, the use of surrogacy has led to a breakdown in the bond between mother and child.
The problem is further exacerbated by the fact that there are now states whose legal systems have moved away from the understanding of parenthood as the sum of motherhood and fatherhood. This is an additional factor that complicates determining the administrative and legal status of a child born as a result of surrogacy. If the establishment of parenthood within heterosexual couples can sometimes be problematic, that challenge is even more pronounced where same-sex couples are concerned. The law faces the problem of determining which of the two mothers is the legal mother in a situation where neither is the actual mother (the child is born to a surrogate mother), and which of the two fathers should be treated as the legal father for the purposes of certain legal consequences (e.g. the child acquiring a specific nationality), particularly when the mother is unknown.
Whenever, therefore, a birth results from a surrogacy agreement, legal issues arise concerning, among other things, the acquisition and exercise of parental responsibilities, the application of provisions regarding legal parentage and inheritance, the attribution of legal paternity or, finally, those related to the child’s administrative and legal status: the issue of the child’s entitlement to certain fundamental rights concerning nationality, place of residence or entry into the countries of origin of the intended parents.
The situation is further complicated by the fact that the surrogacy market has a transnational structure, making it resistant to national prohibitions, and the administrative status of a child born as a result of such a procedure becomes highly uncertain. All these factors, taken together and individually, give rise to significant problems in establishing the filiation status of a child born as a result of a surrogacy agreement.
Different legal systems regulate surrogacy in different ways[6]. Some countries prohibit the practice directly or indirectly, while others permit or tolerate it; however, no two legal regimes are identical in this regard. This further exacerbates the confusion.
There are also significant differences in establishing the filiation status of a child born through surrogacy. For example, in Greece[7] the law stipulates that the mother of a child is the woman who has been granted the relevant court authorisation, and not the woman who gave birth to the child. With respect to registration in the civil status register, the woman who commissioned the surrogacy is entered as the child’s mother on the basis of an authorisation issued by a judicial authority, rather than the biological mother. In the United States of America, the laws governing surrogacy vary from state to state, ranging from complete prohibition to a highly liberal approach. For example, in the state of Oregon, the law allows for the birth certificate to be easily amended. In the case of a child born through surrogacy, the surrogate mother’s surname is immediately entered on the child’s birth certificate, followed by an amendment to the certificate to include the names of the intended parents, regardless of whether they are a couple (heterosexual or homosexual) or a single person. The United Kingdom was among the first countries to legalise surrogacy, but only in its “altruistic” form. In this case, the pregnant woman cannot consent to the transfer of the child until at least six weeks have passed since the birth. This means that the surrogate mother is entered on the birth certificate, but the change is only effected once a certain period of time has elapsed. In Ukraine, when a human embryo conceived by a married couple (a man and a woman) through assisted reproductive technologies is transferred into another woman’s body, that married couple are the child’s parents[8]. Therefore, parental rights to the child belong exclusively to the genetic parents. Only those parents are listed on the child’s birth certificate. The certificate contains no information about how the child was conceived or born. No information is provided about the surrogate mother. The intended parents are immediately recognised as the legal parents without the need for adoption procedures or other legal proceedings. Following the birth of the child, it is sufficient to obtain a birth certificate indicating the biological (intended) parents. These are just a few of many possible examples.
When it comes to establishing the filiation of a child born through surrogacy, various situations are therefore possible, and different legal systems may regulate this in different ways. The most typical configurations, however, include the following:
- the intended parents are entered in the child’s birth certificate immediately and exclusively (the civil status records contain no information regarding birth to a surrogate mother),
- the intended parents are entered in the child’s birth certificate (the civil status records contain information regarding birth to a surrogate mother),
- the surrogate mother (and possibly her husband) is entered in the child’s birth certificate, and the intended parents are subsequently entered in her (their) place, which requires no legal formalities other than a declaration by the parties concerned,
- the surrogate mother (and possibly her husband) is entered in the child’s birth certificate, and subsequently the intended parents are entered in her (their) place based on a relevant court ruling (other than an adoption order),
- the surrogate mother (and possibly her husband) is entered on the child’s birth certificate, and subsequently the intended parents are entered in her (their) place as a result of an adoption procedure.
From the perspective of determining the child’s administrative and legal status, this raises a number of problems. After all, the establishment of a child’s filiation determines a whole range of related rights. Article 7(1) of the Convention on the Rights of the Child[9] states that “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents”. The key issue is therefore to determine the nationality of the child born through surrogacy, which is inextricably linked to the child’s filiation. The child’s descent from specific parents also determines its surname, its right to obtain the relevant documents, its ability to travel, and so on.
Nationality (citizenship) is a legal institution based on the existence of a relatively stable legal bond, in terms of time and space, linking the individual to the state and defining their affiliation with that state; this bond forms the basis for the existence of a complex of mutual rights and obligations between the individual and the state[10]. It should be emphasised that nationality constitutes a meta-right in relation to civil and political rights. It is a sine qua non condition determining the ability to exercise these rights[11]. The determination of nationality entails a whole range of consequences. Such a child has a defined and unambiguous administrative and legal status, may be issued a passport and may avail themselves of the public services in the state in which they are a citizen (such as free medical care). The regulation of matters concerning nationality, its acquisition and loss, as well as the associated legal consequences, is left to the sovereign decisions of the state[12]. Legal systems provide for various methods of acquiring nationality (citizenship).
From the perspective of the present discussion, the acquisition of nationality in the traditional manner, i.e. by birth, which occurs ex lege, is of particular significance. In this case, there are two fundamental methods: ius soli (right of soil) and ius sanguinis (right of blood). Under the right of soil, a child acquires the nationality of the country in which they were born. This principle also applies, by way of exception, in countries where the right of blood is traditionally followed, where a child has been found and the parents are unknown, or where the child’s parents do not hold any nationality. Where ius soli applies, the administrative and legal situation of a child born through surrogacy is relatively straightforward. The child’s nationality can be easily determined at the time of birth, regardless of who is recognised as the child’s parent.
The situation changes dramatically in the case of ius sanguinis, which predominates in European systems. The child acquires nationality through birth, and the nationality derives from both or at least one of the parents. The nationality of the child’s parents becomes the decisive criterion for the child’s acquisition of nationality in such a case. This is a sufficient criterion, as once it is met, the child’s nationality arises ex lege. It is therefore crucial to establish the parent of a child born through surrogacy, as this is the only way to resolve the issue of such a child’s nationality.
At this point, we must return to the possible configurations outlined above. In this context, let us omit situations where the laws of a country permit surrogacy and the procedure is used by parents who are nationals of that country. The laws of such countries generally also regulate matters relating to the acquisition of nationality by children born through this procedure. Complications arise, however, when the birth certificate of a child born through surrogacy is issued by a country where it is permitted, while the intended parents (or parent) are citizens of another country, particularly one whose legal system does not recognise surrogacy.
It would seem that the simplest situation arises when the intended parents are immediately entered into the child’s birth certificate. Theoretically, therefore, at first glance, they are the legal parents, and the child thus acquires their nationality by operation of law. The situation may be similar when the intended parents present an abridged birth certificate. Even if the full birth certificate were to indicate that the child was born to another woman, for official purposes the legally permissible version is used, which contains no reference whatsoever to surrogacy. Even where legal regulations clearly state that a child’s mother is the woman who gives birth to it, legalising a child born via surrogacy is neither a difficult nor a complicated process, provided, of course, that the applicants do not raise any reasonable doubts as to the child’s parentage on the part of those seeking to obtain the relevant documents for the child. In many cases, this constitutes sufficient grounds for issuing a passport by the country of which the surrogate parent is a national, since, under the principle of ius sanguinis, the child’s nationality – as the child of that parent – is clearly established by the documents submitted. Although this raises significant legal doubts and does not correspond to objective truth, in most cases this is precisely the situation that arises, and as a result, the child’s filiation is established.
Problems arise if the official requests a full birth certificate, additional documents (e.g. confirming that the child was born to the woman listed as the mother on the birth certificate) or develops doubts for any other reason.
Examples of potential complications perfectly illustrate the key issues relating to surrogacy that have been examined by the ECtHR. As a rule, references to these cases in the literature and case law focus primarily on the Court’s final conclusions. However, it is worth paying attention to the facts of these cases, because they highlight the problems associated with regulating the administrative and legal status of children born through surrogacy.
In the case of Mennesson v. France[13], a married couple of French nationality acquired children born through surrogacy in the USA. In accordance with the ius soli principle applicable there, these children acquired American nationality and, for that reason alone, held US passports, entering the European Union together with their intended parents on the basis of those passports. The applicants subsequently applied, unsuccessfully, to have the details from the birth certificates recorded in French civil status registers, which would also have entailed confirmation of the children’s French nationality. The case was referred to the public prosecutor’s office on the suspicion that the applicant woman had not given birth to the children to whom the submitted documents related. In France, proceedings were brought against the applicants for false representation regarding the legal status of the children[14]. Ultimately, registration of the American documents in the French registers was refused, as the judges found that recognising the foreign documents would amount to tacit approval of surrogacy. In the case before the ECtHR, it was argued that, as a result, the children did not have French nationality and, consequently, a passport or valid right of residence (although, as minors, they could not be deported). It was precisely on this basis that the ECtHR identified a violation of Article 8 of the ECHR in relation to the minor applicants, but only in relation to their biological father, not to the intended mother[15].
We were faced with a different set of facts in the case of D. and Others v. Belgium[16]. In this case, the intended parents were a Belgian couple who had entered into a surrogacy agreement with a Ukrainian woman. The Ukrainian authorities issued a birth certificate where the applicants were listed as the parents. The intended parents applied to the Belgian Embassy in Kyiv for a passport for the child, but their application was refused due to their failure to produce the relevant documents, including a certificate of the applicant’s pregnancy or discharge summary from a Ukrainian hospital. The applicants attempted to board a flight to Belgium with the child having only the child’s birth certificate, but this also failed. As a result, they were forced to leave the child in Ukraine with a hired nanny (a situation that lasted several months), while they applied to the court for recognition of the Ukrainian documents in Belgium. In this case, the ECtHR acknowledged that state authorities cannot be required to permit the transit of children born through surrogacy without first verifying their legal status. This case clearly demonstrated that the lack of administrative and legal regulation of the child’s status prevented the child from entering the EU alongside the intended parents, leading to prolonged separation of the child from the intended parents after the child’s complete legal separation from the surrogate mother. As a result, the child was consigned to a kind of legal limbo in terms of status[17].
This was even more evident in the Paradiso and Campanelli v. Italy case[18]. An Italian couple entered into a surrogacy agreement in Russia. After the child’s birth, the surrogate mother made a statement at the hospital, in the presence of a doctor, to the effect that the applicants – as the embryo donors – were the child’s parents, and that she had consented to this. The Russian authorities issued a birth certificate listing the applicants as the child’s parents. Although the Italian Consulate in Moscow issued documents allowing the complainant to return to Italy with the baby, the Consulate simultaneously informed the competent juvenile court, the Ministry of Foreign Affairs and the local authorities that the documents relating to the child’s birth contained false information. Therefore, the child entered the EU legally, but the local public prosecutor’s office initiated criminal proceedings regarding the certification of false information concerning the child’s civil status, the use of false documents, and a breach of the Adoption Act. The Juvenile Court ordered DNA tests to determine whether the complainant was the child’s father. The results were negative, meaning that, under Russian law too, no legally valid surrogacy agreement had been concluded. As a result, the child’s legal and biological ties with the intended parents were not recognised. Although a new birth certificate was issued for the child, stating the actual date and place of birth, the section regarding the parents was marked as “unknown”, a decision which was ultimately upheld by the ECtHR. Thus, despite the fact that the intended parents expressed their will, desire and intention to care for the child, the child was placed with a foster family for the duration of the proceedings, and ultimately the child’s status was determined by regulations relating to the status of children whose parents are unknown. As can be seen from these examples, the inclusion of the intended parents in the child’s birth certificate does not yet guarantee certainty in establishing the child’s filiation, and consequently their nationality.
Even greater doubts arise in a situation where the surrogate mother is entered in the birth certificate, and the intended parents are recorded only subsequently. In accordance with the rules outlined above, the child should acquire the nationality of the surrogate mother at the time of birth (if the country of which the mother is a citizen applies the principle of ius sanguinis). The subsequent acquisition of nationality linked to the intended parents does not necessarily entail the loss of the nationality originally acquired. In contemporary countries, dual nationality is generally not prohibited, though there are exceptions. Acquiring the nationality of the intended parents may therefore require the prior renunciation of the nationality acquired at birth from the surrogate mother.
What, however, constitutes the basis for the acquisition of nationality from the intended parents in a situation involving a two-stage preparation of the birth certificate?
The seemingly simpler answer concerns the father. If the intended father acknowledges the child – which, in many systems, is possible even before the child’s birth – then that father is entered in the child’s original birth certificate, and as a result, the standard mechanisms for acquiring nationality by ius sanguinis apply from the moment of birth. However, if we are dealing with a two-stage process and the birth certificate lists the surrogate mother and another person as the father (the surrogate mother’s husband), with the intended parents’ details being added subsequently, the situation becomes more complicated. Nevertheless, it is generally still possible for the intended father to acknowledge such a child (which consequently overturns the presumption regarding the entry of the father’s details in the civil register, and the child may acquire the nationality of the acknowledging father at the moment of birth); however, it should be borne in mind that this is conditional upon the determination of the child’s mother.
If the child’s mother is unknown (which is often the result of a surrogacy agreement), the procedure for recognising the child gives rise to insurmountable obstacles. In systems where identification of the father is always derived from the mother, a lack of knowledge regarding the mother prevents the legal determination of the father, even when two fathers are listed in a foreign birth certificate. The situation is similar when two female persons are listed as mothers in the birth certificate, without specifying whether either of them is the biological mother of the child and, if so, which one. In this case, too, it is not possible to determine which of them is the mother. Establishing the child’s nationality in relation to the intended parents may therefore be complicated simply because we are unable to legally determine the parents of a child born through surrogacy.
However, even if the intended parents are entered in the child’s birth certificate in a manner that allows filiation to be determined, will the child acquire their nationality, and if so, by what procedure? And does this acquisition take place in a primary or secondary manner?
The simplest answer is provided by the procedure whereby the intended parents are entered as a result of an adoption procedure (in some countries this occurs under a simplified procedure or designated adoption). As a result, a minor child who has been adopted generally acquires the nationality of the adoptive parents by operation of law.
Secondly, attention should be drawn to the system of automatic recognition of foreign court rulings adopted in some countries, which means that it is not necessary to conduct separate proceedings and issue an administrative act by the recognising country’s authority for the foreign court ruling to have legal effect within that country. A child born as a result of surrogacy is treated in accordance with the content of the automatically recognised foreign birth certificate, with all the administrative consequences that ensue. Since the intended parents are treated in the birth certificate as if they were the biological parents, the determination of nationality does not pose any major problems. In such cases, the objective truth is irrelevant; what matters is the content of the certificate itself.
However, recognition of a foreign birth certificate is not always automatic. Whether such recognition is granted is determined in each case by the law of the relevant country[19]. The essence of recognition of foreign court rulings boils down to the transfer of the legal effects of a court ruling issued in one country to the territory of another country. This is achieved by means of an appropriate recognition order. Generally speaking, recognition of the legal effects of a foreign birth certificate has tangible consequences for the child’s administrative and legal status, creating a kind of legal fiction that the child is that of the intended parents. We are then dealing with a situation similar to the one discussed earlier. However, formal recognition of the child’s birth certificate may not take place, for example due to a public policy clause. If a foreign birth certificate is not recognised, there is no recognition of parenthood, and consequently, we cannot determine nationality. This is an undesirable outcome from the point of view of the child’s welfare. In such cases, the law of the relevant country faces a dilemma as to how to establish the grounds for the child’s potential acquisition of nationality. Since we are dealing with a two-stage procedure, it is clear that the child did not acquire the nationality of the intended parents at the moment of birth. This is also not an adoption, which is traditionally associated with the adopted child acquiring the parents’ nationality. The mere fact of the intended parents’ details being entered in the child’s birth certificate does not result in the acquisition of the parents’ nationality by the child.
In the latter cases, as well as in all situations where the intended parents are entered into the child’s birth certificate only after some time (subsequently, after the surrogate mother), and where it is not possible to unambiguously determine the child’s administrative and legal status, we are dealing with a certain legal limbo surrounding such a child. How should the child’s administrative and legal status be regulated in that case?
In the absence of other procedures, particularly where there is no automatic recognition of the legal effects of a foreign birth certificate, the institution of transcription has been employed. Transcription of a foreign document involves the faithful and literal transfer of the document’s content to the civil status register of another country. Transcription is purely declaratory in nature and does not entail substantive legal effects[20], and therefore does not create a new legal situation, but confirms its prior existence. In the course of transcription, no substantive review is generally carried out of the civil status record drawn up abroad with regard to the veracity of the event stated therein, the conformity of that event with the law, or the motivation of the entity submitting the record for transcription. The purpose of transcription is therefore to enable the civil status record of the relevant country, produced as a result of the process, to be used before its authorities without the need for a certified translation on each occasion[21]. The transcribed record thereby acquires an existence independent of the record on which it was based. Its subsequent status within a given legal system is independent of the status of the foreign civil status record. In terms of evidential value, it is no different from a civil status record created on the basis of the registration of a legal event in that country. It may be used on equal footing with a domestic record. Although transcription is, by definition, intended to be merely a simple technical procedure – a sort of “rewriting” of a foreign birth certificate into another country’s system – in practice it leads to the creation of an independent and self-contained record, treated in practice as a sufficient basis for determining the child’s administrative and legal status, including their nationality, although this does not follow from any principle traditionally attributed to the methods of acquiring nationality. Once the birth certificate of a child born to a surrogate mother has been transcribed, the child is treated as if it held the nationality of the intended parents (parent), although this does not follow from any provision or court ruling. By virtue of the fait accompli, it is assumed that such a child possesses “parental” nationality, which by its very nature should be acquired solely by birth.
So, although a parental relationship cannot be established through the transcription of a foreign birth certificate, this is what happens in practice. It is argued that a citizen’s ability to obtain an identity document or an identification number of a particular country cannot be made dependent on a transcription that is impossible to carry out, if only because of a conflict with the legal system in question. It is also pointed out that a refusal to transcribe de facto prevents the child from obtaining an identity document of a particular country, and although this is not tantamount to denying that the child holds the nationality of that country, it effectively bars the child from obtaining a document confirming that status. Another argument in favour of transcription is that it is irrelevant whether the child was born to a surrogate mother, but significant that a human being has been born who is endowed with inherent and inalienable dignity and, as such, has the right to nationality[22].
In this way, we come full circle, and the ordinary, seemingly technical act of transcription becomes in reality equivalent to a situation where the intended parents are entered into the birth certificate from the very outset. The only difference is that, in the case of transcription, this does not stem from any legal regulations, or even from the purpose for which this institution was established. However, using it in this way eliminates the legal limbo mentioned above. Acceptance of this state of affairs increases the more we perceive the problem in light of the best interests of the child, who is the true victim of the entire situation.
Does this approach offer a solution to the problem of determining the filiation of children born through surrogacy? In the current situation, despite existing fundamental legal doubts, transcription is ultimately the only available method in the situations outlined above.
Do countries that do not legally recognise surrogacy therefore have an obligation to transcribe the birth certificates of children born through surrogacy?
An analysis of the case law of European courts provides some answers to this question. In cases concerning the transcription of foreign civil status records, the ECtHR has emphasised the margin of discretion, which depends on the individual circumstances of the case under consideration[23]. The Court recognised that a child who has been refused transcription of their birth certificate may find themselves in a situation of uncertainty regarding their legal status, and that the child’s relationship with the parents, as established in the foreign birth certificate, is not recognised by the legal system[24]. However, it generally did not accept the idea that the transcription of a foreign civil status record must be performed automatically.
The situation is different with regard to the CJEU. It followed from the Court of Justice’s earlier case law that legislation on civil status falls within the exclusive competence of the Member States and that EU law does not encroach upon that competence.[25] Currently, although the text of court rulings still affirms this principle, in reality the CJEU is clearly moving away from it[26]. It does so on the basis of the right to free movement within the Schengen area, arising from Article 20(2)(a) and Article 21(1) TFEU, which is one of the components of so-called EU nationality. The exercise of this freedom is not dependent on possessing a transcribed birth certificate, but on the possession of an identity document that confirms the nationality of a European Union Member State. However, in order to obtain such a document, it is necessary in many cases to first have the foreign birth certificate transcribed. A refusal to transcribe, regardless of how strongly the national legal system of the country opposes this, is treated by the CJEU as an obstacle to the exercise of freedom of movement and, as such, is considered to be a violation of EU law. It is emphasised that Member States, while having a margin of legislative discretion in matters of civil status, should exercise this competence in accordance with EU law, and therefore also in accordance with the law on freedom of movement, by recognising the civil status established in another Member State in accordance with that country’s legislation[27]. It is pointed out that a refusal to transcribe a birth certificate prevents children raised by same-sex couples from obtaining an identity document in another Member State and, consequently, prevents them from exercising the rights arising from their status as citizens[28]. As the CJEU emphasises, in the case of a minor child who is a Union citizen and whose birth certificate issued by the competent authorities of the host Member State identifies two persons of the same sex as the parents, the Member State of which the child is a citizen is obliged, on the one hand, to issue an identity card or passport for the child without the need for a birth certificate to be drawn up beforehand by its national authorities, and, on the other hand, the Member State is also obliged, in the same way as any other Member State, to recognise a document issued by the host Member State, thus enabling the child to exercise, together with each of those two persons, their right to freedom of movement and residence within the territory of the Member States[29].
It is significant that the CJEU takes this position in cases concerning the transcription of foreign birth certificates where the child’s nationality has not yet been confirmed, since, by its very nature, transcription is intended merely as a means to that end. Through its rulings, the CJEU therefore protects not so much the person whose EU citizenship has been established, but rather the person with respect to whom this effect may arise. This approach raises doubts on many levels, ranging from encroachment on the exclusive competences of Member States (acting ultra vires) to de facto mandating specific actions on the part of Member State authorities without any certainty as to whether the legal situation concerns a European Union citizen at all.
It is also worth noting that, in practice, disputes over transcription much more frequently concern birth certificates originating from outside the EU (for example, Ukraine, the USA, Israel, India or Russia). In such situations, the CJEU considers itself to have jurisdiction in the matter. It recognises that even if, upon verification, it were to transpire that the child does not hold the nationality of a Member State[30], then such a child should be regarded as a direct descendant of a parent holding EU citizenship, within the meaning of Article 2(2)(a) and (c) of Directive 2004/38[31] on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, and for that reason should also be subject to the protection provided for by EU law. As stated in recital 5 of that Directive, the right of all Union citizens to move and reside freely within the territory of the Member States should also be guaranteed to their family members, irrespective of their nationality.
Following this approach means that wherever there is a need to guarantee freedom of movement to a child born through surrogacy – whether as a potential EU citizen or as a family member of an EU citizen – a refusal to transcribe a foreign birth certificate will be deemed a breach of EU law, which will result in imposing a de facto obligation on Member States to carry out such transcription, and any conflict with the legal order of the Member State in question will be of secondary importance. Through a mere technical procedure, practical problems related to the child’s filiation will be resolved without regard for the traditionally understood institution of nationality or the methods of its acquisition, while the exclusive competences of Member States in this field will remain nothing more than empty declarations. The de facto tolerance of the institution of surrogate motherhood, even in countries where it is prohibited, is thus becoming a reality.
[1] J. Habermas, Przyszłość natury ludzkiej. Czy zmierzamy do eugeniki liberalnej?, Warszawa, 2003, p. 38.
[2] M. Soniewicka, Prokreacja medycznie wspomagana, in J. Stelmach, B. Brożek, M. Soniewicka, W. Załuski, Paradoksy bioetyki prawniczej, Warszawa, 2010, p. 101.
[3] The intended person (or persons) may also provide the surrogate with an embryo previously obtained by means of in vitro fertilisation; in this situation, the surrogate is connected to the child solely via the biological bond that arises from carrying the pregnancy and giving birth.
[4] The surrogate may also be the donor of the egg cell; accordingly, alongside the biological bond, there is also a genetic link between her and the child.
[5] This does not mean, however, that it was impossible to challenge maternity, even under the traditional approach. Such a situation could arise, for example, where, in a neonatal ward, babies were mistakenly switched and placed with the wrong families.
[6] For more on this topic, see: K. Trimmings, Surrogacy, Human Rights and the European Court of Human Rights, Human Rights Law Review, 2015, vol. 15, no. 3, pp. 329-368.
[7] Surrogacy has been legally authorised in Greece (Article 1458, Journal of Laws, No. 3089/2002), and since July 2014 it has also been available to persons residing abroad (Law No. 4272 of 11 July 2014).
[8] Family Code of Ukraine of 10 January 2002, No. 2947-III, Article 123; consolidated text and amendments available at: Family Code of Ukraine (natlex.ilo.org) https://zakon.rada.gov.ua/laws/show/2947-14#Text
[9] Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989 (Dz.U. – Journal of Laws 1991, No. 120, item 526, as amended).
[10] J. Jagielski, Obywatelstwo polskie. Zagadnienia podstawowe, Warszawa, 1998, p. 20.
[11] J. Połatyńska, Prawo do obywatelstwa jako prawo człowieka, “Folia Iuridica”, Zeszyty Naukowe Uniwersytetu Łódzkiego, Łódź 2010 r., p. 2.
[12] B. Banaszak, Konstytucja Rzeczypospolitej Polskiej. Komentarz, Warszawa, 2009, p. 199; Polish Supreme Administrative Court ruling of 16 May 2005, case file No. II OSK 719/06.
[13] Judgment of the ECtHR (Fifth Section) in the case of Mennesson v. France of 26 June 2014, application no. 65192/11.
[14] The proceedings were, however, discontinued on the grounds that the acts in question had been committed in the United States, where they did not constitute a criminal offence.
[15] The cases of Didier Foulon v. France (application no. 9063/14) and Philippe Bouvet v. France (application no. 10410/14) resulted in similar outcomes
[16] Decision of the ECtHR (Second Section) in the case of D. and Others v. Belgium of 8 July 2014, application no. 29176/1.
[17] Richard F. Storrow even argues that children born as a result of international commercial surrogacy become the modern equivalent of “illegitimate children” – deprived of full legal status because countries refuse to recognise their parentage, nationality and family ties. This renders them “phantom children” of the Republic (R.F. Storrow, The Phantom Children of the Republic: International Surrogacy and the New Illegitimacy, Journal of Gender, Social Policy & the Law, 2012, vol. 20, no. 3).
[18] Judgment in the case of Paradiso and Campanelli v. Italy of 24 January 2017, application no. 25358/12.
[19] The matter is further complicated by the fact that, under certain legal systems, same-sex couples may be recognised as a child’s parents, which – for obvious reasons – is often linked to surrogacy procedures. The existing case law of the European Court of Human Rights to date indicates that the legalisation of same-sex marriage falls within the competence of the Contracting Parties to the Convention to regulate, under national law, the manner in which the right to marry is exercised. Consequently, such recognition is frequently hindered by the laws of those countries where same-sex marriage is not recognised, particularly if the intended parents from such a union apply for the recognition of a foreign birth certificate.
[20] M. Rafacz-Krzyżanowska, Kilka uwag o właściwości sądu w sprawach o sprostowanie aktów stanu cywilnego, Nowe Prawo 1957, no. 1, p. 106; J. Litwin, Prawo o aktach stanu cywilnego. Komentarz, Wrocław 1961, p. 520.
[21] M. Wojewoda, in System prawa prywatnego. Prawo prywatne międzynarodowe. Tom 20c, 2014, p. 595.
[22] Cfr. Decision of the Polish Supreme Administrative Court of 30 October 2018, II OSK 1870/16, LEX No. 2591725.
[23] Judgment of the ECtHR of 26 June 2014 in the case of Mennesson v. France, application No. 65192/11, § 77-79.
[24] Judgment of the ECtHR of 26 June 2014 in the case of Labassee v. France, application No. 65941/11, § 75.
[25] See, for example, judgments in these cases: Garcia Avello, C-148/02, EU:C:2003:539, para. 25; Maruko, C-267/06, EU:C:2008:179, par. 59; as well as Grunkin and Paul, C-353/06, EU:C:2008:559, par. 16.
[26] CJEU judgment of 5 June 2018, Relu Adrian Coman, Robert Clabourn Hamilton, Asociatia Accept v. Romania, C-673/16.
[27] CJEU judgment of 4 October 2024, Mirin, C-4/23, par. 53.
[28] T. J. Tadla, Transkrypcja aktu stanu cywilnego. Glosa do uchwały NSA z dnia 2 grudnia 2019 r., II OPS 1/19, PiP 2022, no. 3, pp. 170-178.
[29] Case C-490/20: CJEU Judgment (Grand Chamber) of 14 December 2021 (request for a preliminary ruling from the Administrativen sad Sofia-grad – Bulgaria) – V.М.А. v. Stolichna obshtina, rayon “Pancharevo” (OJ EU C 84, 2022, p. 17/2).
[30] In Case C-490/20, the issue concerned the entry of two women in the birth certificate: one holding EU citizenship and the other not possessing such status, and it was unclear which of the two women should be regarded as the child’s mother; see CJEU Judgment (Grand Chamber) of 14 December 2021 (request for a preliminary ruling from the Administrativen sad Sofia-grad – Bulgaria) – V.М.А. v. Stolichna obshtina, rayon “Pancharevo” (OJ EU C 84, 2022, p. 17/2).
[31] Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ EU L 158, 2004, p. 77), see also Judgment of 5 June 2018, Coman and Others, C-673/16, EU:C:2018:385, paras 36 and 51.
