Parentage
1. Scope and terminology
The law of parentage is essentially concerned with the determination of parent-child legal relationships and with the effects of such relationships. In European legal systems, these bonds may be formed not only on the basis of genetic descent as the consequence of natural procreation, but also through the application of assisted reproduction techniques and through adoption. For this reason, legal parentage does not necessarily need to have a biological or genetic basis, although this is statistically the most common pattern. In the case of assisted reproduction techniques, if gametes from a third party are used, parentage bonds are not usually formed between the new-born child and the donor or donors but between the child and the person or persons who consented to the use of such techniques with the intention of becoming parents. With regard to children born by means of natural procreation, it may also be true that legal parentage does not correspond with biological truth. This may be due to the existence of forms of determination of parentage which do not require proof of the genetic descent as well as the legal imposition of limits for bringing actions leading to the establishment or the contestation of parentage. The possibility that there may not be a match between genetic and legal paternity or maternity has led some authors to make a terminological distinction between the notion of parentage (which would apply to biological parents) and parenthood (which would apply to those who assume legal paternity or maternity). Here, however, using more conventional language, the term parentage is used to define the legal condition of father or mother, in the same sense to which Latin legal systems resort—from the descendants’ point of view—to the concept of affiliation (filiation, filiación, filiazione). Legal parentage established by adoption will be dealt with separately (adoption).
The establishment of parentage needs to be distinguished from the attribution of parental responsibility. Although there is a clear tendency to promote the joint involvement of both parents in the exercise of such responsibilities, irrespective of the circumstances leading to the child’s birth, there may be reasons, established by law or determined by the courts, which lead to one or both parents being excluded from the attribution of parental responsibility. On the other hand, parental responsibility may be attributed to persons who exercise forms of social parenthood which deserve certain legal recognition (eg step-parents) or who replace parents if these are absent or do not fulfil their care function satisfactorily. In these cases, the attribution of parental responsibility does not create a relationship of parentage or kinship bonds with the child. The distinction between parentage and parental responsibility is relevant in international private law: both the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children of 1996 (Arts 3, 4) and Regulation 2201/2003 (Brussels IIbis) (Art 1) include issues concerning the attribution and exercise of parental responsibility within their scope of application but leave out those related to the establishment or contesting of a parent-child relationship.
2. Comparative trends
Parentage law is one of the most dynamic areas of family law and, from the perspective of comparative law, one of the most heterogeneous. In all legal systems very similar criteria govern the determination of parentage (birth-giving; legal presumptions of paternity; acknowledgment; judicial decision; consent to assisted reproduction), but regulation of the requirements determining when these criteria are operative and the limits on their effects vary greatly from one legal system to another. This diversity is due, to a great extent, to the greater or lesser importance attached to family stability and to social parenthood as opposed to biological parentage. There are legal systems that firmly believe the child’s welfare to be furthered by respecting well-established social and psychological bonds and ensuring that the child is emotionally and financially supported by his or her legal father and mother, regardless of the fact that they may not always be the biological parents. Increasingly, however, there are legal systems which are beginning to grant importance to the child’s long-term interests associated with the disclosure of genetic origins, which are also considered highly relevant from a legal perspective. The second position is becoming increasingly relevant in contemporary law of parentage, although without displacing the pre-eminence of affective attachments. Among other factors which contribute to this greater appreciation of the biological element are the relative loss of the institutional relevance of marriage, the declining stability in family relationships, and the easy access parents and children have to technological advances which allow genetic heritage to be readily ascertained.
a) Maternity
In the great majority of European legal systems maternity is determined by the act of giving birth in agreement with the Roman legal principle mater semper certa est. This form of determining maternity operates without prejudice to other more secondary forms, which may also be applied when there is no proof of the fact of the birth-giving. In connection with the determination of maternity, it should be pointed out that a minority of European legal systems (France, Italy and Luxembourg) allow pregnant women who do not wish to assume maternity to give birth anonymously and avoid maternal affiliation from being legally established. So far the European Court of Human Rights (ECtHR) has not considered the practice of accouchement sous X contrary to the ECHR, even though it may impede the access of a child born in this way to knowledge of his or her birthparents. The court found that the measures adopted by the French legislator, which encourage but do not force the mother to consent to the disclosure of her personal identity, fall within the national legislator’s margin of appreciation (ECtHR No 42326/98 – Odièvre).
b) Paternity
If the mother is married, paternity is usually established in relation to her husband by means of the presumption pater est quem nuptiae demonstrant. There is a clearly prevailing trend in European legal systems to apply such presumption if the child is born within marriage, even if it was conceived before the wedding. In contrast, criteria in relation to the time at which the presumption ceases to apply are more varied. Ensuring that children have a legal father is still a predominant policy goal in many countries, and this explains the fact that in some legal systems the presumption remains in force if the child is born before the mother’s divorce, regardless of whether or not she was living with her husband at the time of the child’s conception (eg Switzerland, Austria and the Netherlands). In other legal systems, the presumption ceases to apply if proceedings for spousal separation showing that the spouses were not living together had been instituted prior to the 300 days leading up to the birth of the child (eg France and Italy), or even, with a more realistic criterion, if it is proved that the spouses were factually separated during the legal period for conception (eg Spain). German law occupies an intermediate position, according to which the presumption does not apply if the child is born after the filing for divorce, provided that a third party has recognized the paternity.
When the presumption is not applicable (normally because the parents are not married), paternity may be established by means of voluntary acknowledgment by the person claiming to be the father. This means of establishing paternity is admitted in practically all European legal systems except in England, where the absence of acknowledgment as a legal institution is compensated by facts or legal acts which are considered proof of paternity, such as the father’s name appearing on the child’s birth registration or even the fact of a parental responsibility agreement having been reached with the mother. The attribution of relevance to certain elements of fact in proving parentage—without there being an express acknowledgment of paternity—recalls the function fulfilled in French law by so-called ‘status possession’ (possession d’état), ie the fact that a person may be openly and regularly held to be someone’s child within his or her family and social sphere. In France, status possession permits the determination of paternity even though it plays a very secondary role in relation to acknowledgment.
In continental Europe the requirements for acknowledgment of paternity are very diverse. It is often the case that acknowledgment only becomes effective upon the mother’s assent, and also, depending on the age, upon the child’s. The requirement for maternal assent is understandable both because of the mother’s knowledge of the facts which may have led to the child’s conception, as well as through her being personally affected by the establishment of paternity. However, the requirement is not beyond controversy because the mother’s personal interests may not always be aligned with the father’s or with the child’s, and this circumstance may sometimes distort the determination of paternity by hampering or falsifying it. For this reason, some legal systems do not require another person’s assent to proceed with acknowledgment (eg Switzerland; Spain, if acknowledgment comes about within a period of 30 days following the birth) and place on the mother the burden for contradicting or contesting the acknowledged paternity. In systems which do require assent, if it is not forthcoming from the mother, or, where appropriate, the child, the court may sometimes make up for the omission and grant approval to the acknowledgment (eg the Netherlands, Belgium and Italy), but in other cases it is necessary to institute proceedings to establish paternity by means of a judicial decision (eg Germany). Legal restrictions on the acknowledgment of paternity may also be justified by the putative father’s mental incapacity, in order to protect him from giving legally binding statements which run contrary to his interests or even contrary to the facts; nevertheless, these restrictions should not deprive him from having legal means at his disposal to establish parentage in conformity with the biological truth (ECtHR No. 46185/08 – Krušković).
The legal rules governing paternity actions also reflect very substantial divergences as to the importance which legal systems attach to social parenthood, family stability and the disclosure of biological origins. These divergences become especially apparent as regards the conferral of legal standing and the setting up of time limits for bringing paternity actions. When dealing with actions to establish paternity, the laws unanimously attribute legal standing to the child, but not always to the mother—if she seeks the declaration of paternity on her own behalf—nor to the man who claims to be the father. If the acknowledgment of paternity fails, some countries do not allow the alleged father to bring an action aimed at establishing paternity (eg the Netherlands, Italy, Switzerland and Sweden). A significant number of legal systems also set time limits—of highly variable duration—to institute proceedings, giving legal certainty priority over the ascertainment of biological truth, even if it is the child himself or herself that wishes to bring the action. As regards contestation of paternity, the prevailing trend in Europe is to give priority to the protection of marriage and social parenthood through the establishment of short time limits for contestation of paternity and the restriction of legal standing to the child, the mother and the person who is recorded as being the legal father (generally the mother’s husband). Thus, standing is not usually granted to the person who claims to be the biological father, at least while there is a social and family relationship between the child and his or her legal father (§ 1600 Bürgerliches Gesetzbuch (BGB)). The legal systems which permit such contestation by the biological father subject the exercise of the right to short time limits (in France, eg, the action becomes barred if the child has enjoyed status possession in relation to his or her legal father for five years) or grant the judge discretion to assess whether the exercise of the action to challenge paternity is beneficial to the child (England).
c) Parentage by assisted reproduction
The routinization of assisted reproduction techniques has increased the normative heterogeneity of European legal systems of parentage. In this matter, divergences among legal systems are not only technical but also political because they concern decisions about the availability of gametes and the human body itself as well as the legal favouring of particular family models (family). The responses of member countries of the Council of Europe to a questionnaire drawn up by the Steering Committee on Bioethics (CDBI/INF (2005) 7) show the diversity of legal criteria in the conditions of use of assisted reproduction techniques, in particular in relation to: (i) determining who may have access to such techniques (married couples; unmarried couples; homosexual couples; single persons); (ii) the admissibility of heterologous treatment and in particular ova and embryo donation; (iii) the admissibility of and, where appropriate, the conditions for the entering into and enforcement of surrogacy agreements; (iv) the protection of anonymity or the duty to disclose donors’ identities. National barriers to specific treatments are usually circumvented by moving to countries with more liberal regulations. Within the EU, the right to receive services in all Member States can be asserted to this end, as the English courts made evident in the well-known Blood case (R v Human Fertilisation and Embryology Authority, ex p Blood [1999] Fam 151, CA).
When the mother-child relationship derives from the use of assisted reproduction techniques, maternity is legally attributed to the gestational mother. The only exceptions to this rule are cases of surrogate motherhood in legal systems in which surrogacy is expressly allowed or tolerated. The permissibility of surrogate motherhood is exceptional in Europe: it is regulated in Greek law, which subjects it to prior judicial approval, and in English law, which permits surrogacy arrangements to be made under certain conditions but considers them unenforceable against the will of the carrying woman. It may also be practised—in the absence of legal prohibition—in other countries which under no circumstances, however, consider surrogacy agreements to be legally binding if they are not voluntarily complied with after the birth (Belgium and Denmark). Paternity, for its part, is normally determined by virtue of a presumption of paternity if the woman is married, or by acknowledgment when she is not. Consenting to the use of the reproductive technique usually prevents a judicial challenge of paternity based on the lack of a genetic relationship between the child and the father, although there are legal systems which exceptionally permit contestation by the child (Germany).
3. European legal principles concerning determination and contestation of parentage
The previous comparative law overview clearly shows that the likelihood of reaching a substantial degree of harmonization in the law of parentage is still a long way off. At the European level, the most relevant legal advances were achieved decades ago. Their aim was to put an end to the law’s discriminatory treatment of children born out of wedlock, both regarding the establishment of the parent-child relationship as well as the legal effects thereof. The conventions drawn up by the International Commission on Civil Status (Convention No 6 on the establishment of maternal descent of natural children of 1962) and especially by the Council of Europe (European Convention on the Legal Status of Children born out of Wedlock of 1975) contributed to achieving this objective. The Convention of 1975 facilitates the establishment of parent-child relationships of children born out of wedlock and acknowledges that they have the same maintenance and succession rights as children born in wedlock. According to the convention, maternity is to be based solely on the fact of the birth of the child, and paternity may be evidenced and established through scientific tests. Nevertheless, bearing in mind that in 1975 legislation in many countries was still in a transitional stage, the convention allowed signatory states to formulate reservations and adapt their domestic laws progressively (Art 14). This process culminated subsequently with the case law of the ECtHR, which declared systems requiring the establishment of maternal affiliation out of wedlock by means of the mother’s acknowledgment and the legal rules discriminating against children born out of wedlock in matters of kinship and succession rights to be in breach of Arts 8 and 14 ECHR (ECtHR No 6833/74 – Marckx).
Aside from these developments, in recent decades the ECtHR has also had many opportunities to monitor the conformity of national rules —both substantive and procedural—regarding the establishment and contestation of parentage with the right to respect for private and family life (Art 8 ECHR). The relevance of this case law, as well as the awareness of the profound social and family changes which have come about in Europe, also prompted the drawing up—at the request of the Council of Europe—of a Report containing 29 principles concerning the establishment and legal consequences of parentage (White Paper on Parentage 2002). The principles of the White Paper, together with the most recent ECtHR case law, could constitute the basis for a future international instrument dealing with the law of parentage, whose preparation has been given priority (Lowe Report 2006, Council of Europe, CJ-FA (2006) 1 Rev). In addition, any action purporting to embrace the regulation of the consequences of parentage should not overlook the Principles of European Family Law Regarding Parental Responsibilities (PEFLPR) published by the CEFL in 2007 (parental responsibility).
Principles 2 to 7 of the White Paper on Parentage 2002 start from the assumption that the law has to provide for the possibility of establishing the father-child relationship by the generally accepted means of presumption, acknowledgment and judicial decision, and they grant latitude to national law in order to: (i) determine when the presumption of paternity has to cease to be effective; (ii) extend the presumption to unmarried couples; (iii) define a legal solution for presumption conflicts; (iv) decide whether the child’s consent and/or that of his or her mother or confirmation from a competent authority has to be required or not to give effect to the acknowledgment of paternity; (v) determine who has legal standing—besides the child or his or her legal representative—to bring an action to declare paternity; and (vi) establish time limits for the filing of action, even if it is the child himself or herself who decides to institute proceedings. However, as regards the child’s position, the case law of the ECtHR has significantly restricted this latitude by stating emphatically that persons have a vital interest, protected by the ECHR, in establishing parentage in conformity with the biological truth as an essential part of their personal identity. Thus, although admitting that statutory time-limits per se are not incompatible with the ECHR, the court has found violations of Art 8 in cases where the applicant had no reasonable opportunity to take legal action (ECtHR No 23890/02 – Phinikaridou; No 17038/04 – Grönmark) or was denied the chance to benefit from more flexible rules laid down by subsequent legislation (No 4914/03 – Turnali).
Concerning the parent’s standing, the case law of the ECtHR appears to be in a stage of transition: in the case of Yousef v Netherlands (No 33711/96) the court did not find an infringement of Art 8 ECHR where a genetic father was not entitled to recognize his daughter, with whom he maintained regular personal contact, even after the death of the mother (who had opposed the acknowledgment); however, in Różański v Poland (No 55339/00), a biological father’s rights were understood to have been violated owing to the ‘lack of any directly accessible procedure’ in the domestic legal system by which he could claim to have his legal paternity established. While the decision does not rule out the admissibility of certain limits (in the child’s interests) to the father’s claim, it fails to specify what such limits might be.
Principles 8 to 13 of the White Paper on Parentage 2002 put forward a system of judicial contestation of paternity by which legal standing is conferred on the person who appears as legal parent and the child or his or her legal representative, with the possibility that such position ‘may also be given’ to the other parent or to other persons justifying a specific interest, in particular the person claiming to be the father. This set of principles also allocates discretion to national law as regards: (i) the possibility of restricting the legal standing to contest paternity or maternity to specific persons if the child’s welfare so requires (eg to protect family peace or further legal certainty); and (ii) the possibility of setting up time limits for the exercise of the right to contest paternity. The orientation of these principles is in keeping with ECtHR decisions in these fields. In particular, the court has declared as contrary to Art 8 ECHR a legal setting which prevented genetic parents from contesting paternity established by means of presumption if the legal father was separated from the mother at the time of the child’s conception and had never treated the child as his own (ECtHR No 18535/91 – Kroon; see however, taking a contrary and quite unconvincing approach, No 3465/03 – Chavdarov). Conversely, the court has declared that the exclusion of the genetic father’s legal standing to bring proceedings contesting paternity may be in conformity with the convention if the legal father and the child enjoy family life together (ECtHR No 20578/07 – Anayo). Regarding time limits, the setting up of a specific time period for bringing an action for disavowal of paternity does not violate the convention, but the time limits must be calculated in such a way as to offer the affected party a fair chance to institute proceedings (ECtHR No 74826/01 – Shofman).
4. Developments in assisted reproduction and access to biological origins
The conditions which must be met for resorting to assisted reproduction techniques and the legal consequences of their use have also been the object of international discussion. In 1989 a committee of experts (CAHBI) set up at the request of the Council of Europe drew up a Report on Human Artificial Procreation consisting of 21 principles aimed at setting out the requirements and limits to which the practice of such techniques should be subject, as well as the rules that should apply for the determination of parentage. Principles 9 to 11 of the White Paper on Parentage 2002 assume and develop the criteria established in the CAHBI Report. In cases of assisted reproduction, paternity may also be determined by presumption, acknowledgment or judicial decision. In particular, the man who consented to the application of the technique cannot oppose the determination of his paternity, unless the child was not born as a result of the treatment. For its part, the right to disclaim paternity is also restricted to the case in which he had not consented to the treatment or the birth had not come about as a result of it. The ECtHR has declared that the right to respect for private and family life includes the right to respect for the decision to be or not be a genetic contributor to the conception of a child and therefore to become or not become a biological father or mother, notwithstanding the margin of appreciation of states to balance public and private interests (No 6339/05 – Evans; No 44362/04 –Dickson).
Since the practice of assisted reproductive technologies gives rise to sensitive ethical dilemmas and since there is no uniform stance among European jurisdictions, the ECtHR has declared that states enjoy a wide margin of discretion as to the decisions they take regarding the admission or prohibition of specific procreation techniques; however, states cannot engage in discrimination, eg by allowing heterologous artificial insemination and rejecting at the same time in vitro fertilisation with donor contribution, as did Austrian law (ECtHR No 57813/00 – S. H. and others). In many countries the practice of assisted reproductive technologies with a donor’s contribution has aroused legal debate around the right of children to know their biological origins as a right independent from the right to have legal parentage determined. This debate also arises in other contexts, such as on occasion of: (i) anonymous birth-giving wherever it is admitted; (ii) the still-common practice of closed or confidential adoption in the law of adoption; and (iii) the application of the rules for determination of parentage in natural procreation, bearing in mind the tendency of such rules to condone the divergence between genetic origins and legal parentage. At the international level, the legal frame is presided over by the recognition of a child’s right to know his or her parents ‘as far as possible’ (Art 7(1) UNCRC). The Strasbourg Court has also protected the fundamental interest of persons to receive the information necessary to find out about such an important aspect of their personal identity as their genetic origin (ECtHR No 53176/99 – Mikulić). The degree of protection of this legal position, which the court describes as a right, depends on the interests in conflict. The right to know one’s genetic heritage may justify the exhumation of a corpse for DNA analysis to be carried out with the aim of determining paternity (ECtHR No 58757/00 – Jäggi) or the recognition of the right to institute proceedings for contesting paternity through biological testing methods unavailable in previous proceedings (ECtHR No 11449/02 – Tavli). This approach is in contrast to the legal protection of the anonymity of sperm, egg or embryo donors for purposes of carrying out assisted reproduction techniques. Principle 13 of the CAHBI Report lays down the duty to protect such anonymity as a general rule (in keeping with existing law in a significant number of European countries), without prejudice to national laws which provide contrariwise for disclosure of the donor’s identity at the request of the child.
Literature
Marie-Thérèse Meulders Klein, ‘The Position of the Father in European Legislation’ (1991) 4 IJLPF 131; Juan Miquel, ‘Abstammungsrecht in Europa’ in Festschrift Andreas Wacke (2001) 279; Hans-Georg Koch, ‘Fortpflanzungsmedizin im europäischen Rechtsvergleich’ (2001) 27 Aus Politik und Zeitgeschichte 44; Nadine Lefaucheur, ‘The French “Tradition” of Anonymous Birth: The Lines of Argument’ (2004) 18 IJLPF 319; Andrea Büchler, ‘Das Abstammungsrecht in rechtsvergleichender Sicht’ (2005) 3 Die Praxis des Familienrechts 437; Machteld J Vonk, Children and their Parents (A Comparative Study of the Legal Position of Children with Regard to their Intentional and Biological Parents in English and Dutch Law) (2007); Caroline Forder and Kees Saarloos, ‘The Establishment of Parenthood: A Story of Successful Convergence?’ in Masha Antokolskaia (ed), Convergence and Divergence of Family Law in Europe (2007) 169; Ingeborg Schwenzer (ed), Tensions Between Legal, Biological and Social Conceptions of Parentage (2007); Andreas Spickhoff, Dieter Schwab, Dieter Henrich and Peter Gottwald (eds), Streit um die Abstammung—ein europäischer Vergleich (2007); Richard J Blauwhoff, Foundational Facts, Relative Truths (A Comparative Law Study on Children’s Right to Know Their Genetic Origins) (2009).
