Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter K.3: Kinship and legitimation

Yuko Nishitani

I. Concept and notion

‘Kinship’ means legal parentage that attributes the child to a man as the legal father or a woman as the legal mother. Kinship is founded on biological reproduction including medically assisted procreation. However, kinship does not necessarily presuppose genetic lineage between the parent and the child. Kinship is distinguished from adoption that is legally constituted by a formal juristic act or judicial decision, independently of the original parentage (see →Adoption). In various jurisdictions, the term ‘filiation’, ‘parentage’ is used as an overarching concept to include both kinship and adoption. Legitimation is a legal institution that provides a child born out of wedlock with the status of legitimate child.

Substantive law rules on kinship and legitimation differ widely between jurisdictions. In →Germany and →Austria, for example, the legal mother is the one who gives birth to the child (§ 1591 German Civil Code (Bürgerliches Gesetzbuch of 2 January 2002, BGBl. I 42, as amended, henceforth German CC); § 143 Austrian Civil Code (Allgemeines Bürgerliches p. 1071Gesetzbuch of 1 June 1811, JGS No 946/1811, as amended, henceforth Austrian CC)). In →France and other Roman legal systems, maternity used to depend on acknowledgement, which has principally been substituted by the registration of the mother’s name into the birth certificate (eg arts 311–25 and 316 et seq French Civil Code (Code Civil of 21 March 1804, henceforth French CC)). While surrogate motherhood is prohibited or ignored in many jurisdictions, it is now authorized in quite a few jurisdictions (eg →United Kingdom, →Greece, →India, →Ukraine, →Russian Federation and several US states), to the effect that the intending mother who provides the egg qualifies as the legal mother by registration or court decision, or through ex post transfer of maternity from the surrogate mother (Hague Conference on Private International Law (ed), ‘A Study of Legal Parentage and the Issues Arising from International Surrogacy Arrangements’ (2014) 16–24 (available at <www.hcch.net>); Katarina Trimmings and Paul Beaumont (eds), International Surrogacy Arrangements: Legal Regulation at the International Level (Hart Publishing 2013) 443–64; Michael Wells-Greco, The Status of Children arising from Inter-Country Surrogacy Arrangements (Eleven International Publishing 2015) 85–287). To ascertain the legal father, presumptions are often provided for the mother’s husband, and in some jurisdictions also for the mother’s registered partner. Paternity may also be based on acknowledgement, paternity registration, ‘possession of status’ or judicial decision (eg § 1592 ff German CC, § 144 ff Austrian CC, art 312 et seq French CC). The conditions to rebut paternity presumption vary between countries, depending on whether and how far →marriage or social parenthood ought to be protected over biology (Dieter Henrich, ‘Streit um die Abstammung: Europäische Perspektiven’ in Andreas Spickhoff, Dieter Schwab, Dieter Henrich and Peter Gottwald (eds), Streit um die Abstammung: ein europäischer Vergleich (Gieseking 2007) 396–404; Ingeborg Schwenzer (ed), Tensions between Legal, Biological, and Social Conceptions of Parentage (Intersentia 2007) 1–11). Various states also take a different position as to whether and how far a natural child can be legitimated, for example by declaration of legitimacy, the parents’ subsequent marriage or putative marriage.

In light of these diverse substantive law rules on kinship and legitimation, it is necessary to ascertain in cross-border cases which law governs the question of whether and on what conditions maternity or paternity is established, surrogate motherhood is permissible, or the child can be acknowledged or legitimated. This entry does not deal with the parent–child relationship as the legal effect of kinship and legitimation, which concerns, in particular, parental responsibilities, custody, access and child abduction. For these issues, see →Child abduction and →Brussels IIa Regulation.

II. Historical developments

The status of children born out of wedlock has gradually been improved in Europe since the 1970s. National constitutions and arts 8 and 14 ECHR (European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221) (see also art 7 and 21 ChFR (Charter of fundamental rights of the European Union (consolidated version 2012/C 326/02), [2012] OJ C 326/391)), particularly the ECtHR case law since the 1979 Marckx decision (Marckx v Belgium, App no 6833/74 (13 June 1979)), served as the legal basis. Most European countries abolished the distinction between legitimate and illegitimate (and adulterine) children, as well as the legal institution of legitimation. The marital status of the parents no longer affects the child’s status, even though the establishment of paternity may still be founded on the parents’ marriage. Comparable developments can also be observed in the →USA, →Canada and most Latin American countries. However, some European countries (eg →Greece) still adhere to the distinctive status of children, as do most Asian and African countries. England exceptionally upholds this distinction and grants legitimation in relation to parental responsibilities and nationality (see Christine Budzikiewicz, Materielle Statuseinheit und kollisionsrechtliche Statusverbesserung (Mohr Siebeck 2007) 213–344).

These trends in substantive law largely affect conflicts rules on kinship and legitimation. Countries like Greece that continue to distinguish between legitimate and illegitimate children in substantive law uphold separate conflicts rules on marital and non-marital kinship and legitimation (arts 17–22 Greek Civil Code (Astikos Kodikas of 23 February 1946, A.N. 2250/1040; FEK A 91/1940, 597, henceforth Greek CC)). Other countries that abolished the distinctive status of p. 1072children born in and out of wedlock in substantive law generally introduced uniform conflicts rules for kinship, with certain exceptions (arts 21–5 Austrian Federal Code on Private International Law (Bundesgesetz über das internationale Privatrecht of 15 June 1978, BGBl. No 304/1978, as amended, henceforth Austrian PILA); arts 92–7 Book 10 of the Dutch New Civil Code (Nieuw Burgerlijk Wetboek of 1 January 1992, henceforth Dutch CC)). France has principally designated the national law of the mother for kinship since 1972 (art 311–14 French CC). The 2011 Polish choice-of-law rules designate the national law of the child (art 55 Polish Private International Law Act (Official Journal 2011 No 80, pos. 432, henceforth Polish PILA), and also in principle art 33(1) Italian Private International Law Act (Riforma del Sistema italiano di diritto internazionale private, Act No 218 of 31 May 1995 in Gazz.Uff., Supplemento Ordinario No 128 of 3 June l995, as amended, henceforth Italian PILA)) The 2004 Belgian choice-of-law rules designate the national law of the respective parent (art 62(1) Belgian Code of Private International Law (Code de Droit International Privé, Loi du 16 juillet 2004 portant le Code de droit international privé, MB 27 July 2004, 57344, as amended, henceforth Belgian PILA)). Germany (1997), Switzerland (1987) and Spain (2015) primarily point to the child’s habitual residence, supplemented by some other alternative →connecting factors (art 19(1) Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche of 21 September 1994, BGBl. I 2494, as amended, henceforth German EGBGB); arts 68, 72–3 Swiss Private International Law Act (Bundesgesetz über das Internationale Privatrecht of 18 December 1987, 1988 BBl I 5, as amended, henceforth Swiss PILA); art 9(4) Spanish Civil Code (Código Civil of 24 July 1889, BOE no 206, 25 July 1889, as amended, henceforth Spanish CC)). Most of these countries no longer have specific choice-of-law rules on legitimation either (see the latest abolishment of art 34 Italian PILA in 2013). Nevertheless, considering that quite a few foreign legal systems still allow the improvement of the child’s status through legitimation, some countries maintained proper choice-of-law rules on legitimation in general (art 23 Austrian PILA; art 98(1)–(3) Book 10 of the Dutch CC) or rules on the recognition of legitimation effected abroad (art 74 Swiss PILA; ss 2 & 3 England and Wales Legitimacy Act 1976 (ch 31), henceforth Legitimacy Act).

III. Legal sources

1. International instruments

As for choice-of-law rules on kinship and legitimation, relevant international instruments are to date limited in number. The CIEC (→CIEC/ICCS (International Commission on Civil Status)) on the extension of the competence of authorities qualified to receive acknowledgements of children born out of wedlock (signed at Rome on 14 September 1961, ICCS Convention No 5, 932 UNTS 63) allows nationals of a contracting state to invoke acknowledgement without kinship under their national law in a contracting state which provides for acknowledgement with kinship, or vice versa (arts 2–3). The Convention, however, de facto lost its meaning once all contracting states abolished former laws providing for natural paternity as an exclusively patrimonial relation between the parent and the child.

The CIEC Convention on legitimation by marriage (signed at Rome on 10 September 1970, ICCS Convention No 12, 1081 UNTS 247) provides for an alternative application of the national law of the father or the mother (art 1(1)). This does not prevent contracting states from adopting more favourable conflicts rules for legitimation (art 5), which could ultimately dispense a reference to art 1. Further, contracting states reserve the right to deny the validity of legitimation when the kinship does not exist, when the marriage is not valid under the lex fori or the national law of one parent, or when the child is adulterine under the lex fori and one of the parents is a national of the forum state (art 2(a)–(d)).

The CIEC Convention concerning the establishment of maternal filiation of children born out of wedlock (signed at Brussels on 12 September 1962, ICCS Convention No 6, 932 UNTS 76) contains no choice-of-law rules in the proper sense. It solely refers to the law of a non-contracting state by allowing a mother, whose name is already registered in the birth certificate, to make a declaration of acknowledgement pursuant to that law (art 3).

2. EU instruments

Unlike some other areas of private international law (→maintenance obligations, divorce, →succession , matrimonial property regimes and the property consequences of registered partnerships), choice-of-law rules on kinship and p. 1073legitimation have not to date been stipulated by regulations or other instruments of the EU (see V. below). Thus, to determine the law governing kinship or legitimation, reference ought to be made to national legal sources and, in limited circumstances, to the above-mentioned CIEC Conventions (→CIEC/ICCS (International Commission on Civil Status)).

IV. Current regulation

1. The law governing kinship

Choice-of-law rules to decide the law governing kinship differ widely between jurisdictions. Traditionally, common law jurisdictions apply the lex fori by definition. A number of civil law countries introduced uniform conflicts rules for the entire kinship when they abolished the distinctive status of legitimate and illegitimate children in substantive law (see II. above). Polish choice-of-law rules designate the national law of the child (art 55 Polish PILA), and Belgian choice-of-law rules the national law of the respective parent (art 62(1) Belgian PILA). Italy refers to the national law of the child and, if more favourable, to the national law of the parent (arts 33(1), (2) and 35 Italian PILA). France principally designates the national law of the mother (art 311–14 French CC), while favouring the application of French law for the ‘possession of status’ (art 311–15 French CC) and referring alternatively to the national law of the parent or the child for acknowledgement by voluntary act (art 311–17 French CC). Article 311–14 French CC is grounded on the principle of ‘mater semper certa est’, which is justified from a legal and sociological viewpoint when it concerns the establishment of maternity. However, the exclusive reference to the mother’s nationality in disregard of the father’s nationality may well discriminate against the father when marital paternity presumption or non-marital paternity is at stake. An earlier rule in Germany (former art 20(1) German EGBGB) that primarily designated the national law of the mother for non-marital parentage in principle avoided this problem by alternatively pointing to the national law of the father or the law of the child’s habitual residence for non-marital paternity. Also Dutch choice-of-law rules solely subject non-marital maternity to the national law of the mother (art 94(1) of the Book 10 of Dutch CC).

When Germany introduced uniform choice-of-law rules for all children in 1997, the primary connecting factor was switched to the habitual residence of the child, supplemented by other alternative connecting factors, ie nationality of the father and the mother and the law governing the effects of marriage (art 19(1) German EGBGB). The consent to establish kinship is additionally subject to the national law of the child or, when more favourable, to German law (art 23 German EGBGB). Also Swiss conflicts rules primarily point to the child’s habitual residence, complemented by the alternative reference to nationality of the child or domicile (→Domicile, habitual residence and establishment) or nationality of the parent for acknowledgement (arts 68, 72–3 Swiss PILA).

Other civil law countries uphold different conflicts rules for marital and non-marital kinship. This is in some jurisdictions a consequence of the distinctive status of legitimate and illegitimate children in substantive law. In Greece, marital kinship is governed by the law governing the effects of marriage since 1983 (art 17 Greek CC). Non-marital kinship is subject to cascading →connecting factors, ie common nationality of the child and the parent, or failing that, common habitual residence of the child and the parent, and failing that, nationality of the respective parent (arts 19–20 Greek CC). As more recent legislations influenced by new conflict of laws methods, →Japan and →Korea employ alternative connecting factors, which refer to nationality of the father or the mother for legitimate kinship, and to nationality of the respective parent at birth or acknowledgement in addition to the child’s nationality (Japan) or habitual residence (Korea) for illegitimate kinship (arts 28–9 Japanese Act on General Rules for Application of Laws (Hōno Tekiyō ni Kansuru Tsūsokuhō, Law No 10 of 1898, as newly titled and amended by Act No 78 of 21 June 2006, henceforth Japanese PILA), art 40–41 Law 6465 of 7 April 2001, Amending the Conflict of Laws Act of the Republic of Korea (henceforth PILA of the Republic of Korea)).

Some other civil law countries abolished status differences of children but still focus on the parents’ marriage in establishing kinship in substantive law, which is reflected in choice-of-law rules. In Austria, the establishment or revocation of marital kinship is governed by the common national law of the parents, or failing that, by the national law of the child (art 21 Austrian PILA), whereas non-marital paternity is subject to the child’s national law (art 25(1) Austrian PILA). In the Netherlands, marital kinship is governed by p. 1074the law of common nationality of the spouses or partners, or failing that, by the law of their common habitual residence, and failing that, by the law of the child’s habitual residence (arts 92 and 93 of the Book 10 of Dutch CC). Non-marital maternity is subject to the national law of the mother (art 94 Dutch CC), while acknowledgement is subject to four cascading connecting factors to enable acknowledgement, ie nationality of the parent, habitual residence and nationality of the child, and habitual residence of the parent (arts 95(1) and 96 Dutch CC). Judicial establishment of kinship follows choice-of-law rules comparable to art 92 Dutch CC, seeking common elements between the parents (art 97 Dutch CC).

2. Implementation of choice-of-law rules on kinship

a) Nationality and habitual residence

As indicated above, jurisdictions that traditionally follow the principle of nationality mostly continue to point to the national law of the father, the mother or the child. However, the reference to the child’s nationality may well result in a vicious circle when the acquisition of nationality depends on the establishment of kinship itself as an incidental question (‘jus sanguinis’). Thus the previous Spanish conflicts rule, which pointed to the child’s law of nationality in principle, had a default rule to refer to the child’s habitual residence when the child’s nationality could not ascertained (ex-art 9(4) Spanish CC). The principal reference to the law of the child’s habitual residence under the current Spanish rule (art 9(4) Spanish CC), as well as in Germany (art 19(1) German EGBGB) and Switzerland (arts 68 and 72 Swiss PILA), avoids this problem and serves as a uniform connecting factor for all children, which reflects their centre of life. Moreover, this legislative policy accords with the tendency in Europe to turn from the principle of nationality to the principle of habitual residence.

b) Alternative connecting factors

The majority of choice-of-law rules examined above employ alternative →connecting factors to favour the legal parentage (‘favor filiationis’). This substantive law policy incorporated in private international law is geared toward the best interests of the child. Depending on the case, however, the best interests of the child may well consist in annulling or revoking kinship rather than upholding the kinship. Thus German choice-of-law rules accept the ‘favour principle’ both for the establishment and contestation of kinship (arts 19–20 German EGBGB; similarly art 33(3) Italian PILA). This policy is arguably preferable to other choice-of-law rules that solely support the establishment of kinship (eg art 96 Book 10 of the Dutch CC; arts 28–9 Japanese PILA; arts 40–41 PILA of the Republic of Korea).

In various jurisdictions that provide for →renvoi in general (eg France, Germany and Japan), it is questioned whether renvoi should be admissible also with regard to alternative connecting factors as to kinship, particularly in cases where the relevant foreign choice-of-law rules restrict the range of alternatively applicable laws or lead to an unfavourable result. While some authors support renvoi following the general principle, others contend to exclude renvoi in such cases as a corollary of the ‘favour principle’, opposing to substitute alternative connecting factors of the forum state by less favourable foreign connecting factors (see Pierre Mayer and Vincent Heuzé, Droit international privé (11th edn, LGDJ 2014) para 643; for art 4(1) German EGBGB, Christian von Bar and Peter Mankowski, Internationales Privatrecht, vol 1 (2nd edn, CH Beck 2003) § 7 para 228). Article 13(3) Italian PILA explicitly provides that renvoi is only admissible when it leads to the establishment of parentage (‘rinvio in favorem’).

c) Timeframe and concurring paternity

Aiming to rely on a connecting factor that actually has the closest connection, the law applicable to kinship may alter in →Germany when the child’s habitual residence or the parent’s nationality changes (art 19 German EGBGB). It is, however, generally accepted that the status of legal father or legal mother once acquired cannot be lost by a subsequent change of the applicable law (‘vested rights’, see also art 25(1) Austrian PILA). Other jurisdictions generally provide for a fixed time frame to determine the applicable law to avoid difficulties in locating the relevant connecting factor (eg art 62(1) Belgian PILA; art 311–14 French CC; arts 69 and 72 Swiss PILA).

Nevertheless, alternative connecting factors that exist at the same time (eg art 19 German EGBGB) may lead to ‘concurring paternity’, when for example one law presumes marital paternity for the husband and another law validates the acknowledgement of the biological father. To solve this problem, some German authors advocate allowing the child to choose the legal father, which could though de facto p. 1075result in an arbitrary decision of the mother. The majority of German authors advocate giving priority to the ‘likely father’ so as to realize the best interests of the child. Thus in the above example, the acknowledging father is given priority over the newly divorced husband (Dieter Henrich, ‘Art 19 EGBGB’ in Julius von Staudinger and others (eds), J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch (Sellier/de Gruyter 2014) para 36–46). In this respect, the Dutch choice-of-law rules on acknowledgement (art 95 Book 10 of Dutch CC) prevent concurring non-marital paternity by fixing the hierarchy of cascading connecting factors.

d) Particular problems of surrogate motherhood

Complex legal problems occur when intending parents from a country prohibiting or restricting →surrogacy go to a foreign country allowing surrogacy (among others →Greece, →Ukraine, Russia (→Russian Federation) or some US states) to make a surrogacy arrangement and take home the child to whom the surrogate mother gives birth. In general, surrogacy-friendly jurisdictions establish the legal parentage of the intending parents, but surrogacy-hostile jurisdictions do not (see I. above). How should then the legal parentage be treated in the latter jurisdictions?

Choice-of-law rules which refer to nationality or domicile of the ‘mother’ (eg art 311–14 French CC) seem to be generally construed as pointing to the intending mother whose legal parentage is at stake. The so-called ‘split maternity’ caused by alternative connecting factors under art 19 German EGBGB is generally solved by selecting the most favourable law for the child (Dieter Henrich, ‘Art 19 EGBGB’ in Julius von Staudinger and others (eds), J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch (Sellier/de Gruyter 2014) para 77a). However, surrogacy-hostile countries have until recently (see below) generally refused, on grounds of →public policy (ordre public), the application of foreign law as well as the recognition of paternity or maternity of the intending parents established by a foreign court decision or birth certificate (French Supreme Court (Cour de Cassation), 6 April 2011, No 09-17130; 13 September 2013, No 12-18315; 12-30138; 19 March 2014, No 13-50005; Supreme Court Japan, 23 March 2007, Minshu 61–2, 619; Administrative Court (VG) Berlin, 5 September 2012 [2014] IPRax 80). Notably, however, some of these countries at least allowed the establishment of non-marital paternity of the biological father in the forum state or the recognition of his paternity confirmed in a foreign court decision or birth certificate (Local Court (AG) Nürnberg, 14 December 2009 [2010] FamRZ 1579; see Hague Conference on Private International Law (ed), ‘A Study of Legal Parentage and the Issues Arising from International Surrogacy Arrangements’ (2014) 36–52 (available at <www.hcch.net>); Katarina Trimmings and Paul Beaumont (eds), International Surrogacy Arrangements. Legal Regulation at the International Level (Hart Publishing 2013) 510–28).

Apparently, denying legal parentage of the intending parents conforms to the fundamental principles of the forum state to prohibit surrogacy or deter reproduction tourism in view of inviolability of human dignity or inalienability of the body (Christoph Benicke, ‘Kollisionsrechtliche Fragen der Leihmutterschaft’ [2013] StAZ 101, 110–11). However, the child born as a result of surrogacy would then be deprived of legal parents and the possibility of obtaining custody, family name, nationality, maintenance or inheritance. Thus authors increasingly argued in view of art 8 ECHR that a foreign court decree or birth certificate granting legal parentage for the intending parents should be recognized, especially when the child is already born, the surrogate mother voluntarily gave up the child, the intending parents are married and willing to foster the child and at least one of them is a genetic parent. The best interests of the child were held to prevail over ethical concern of de facto a authorizing surrogacy ((Konrad Duden, Leihmutterschaft im Internationalen Privat-und Verfahrensrecht. Abstammung und ordre public im Spiegel des Verfassungs-, Völker-und Europarechts (Mohr Siebeck 2015) 329–332; Brigitta Lurger, ‘Das österreichische IPR bei Leihmutterschaft im Ausland: das Kindeswohl zwischen Anerkennung europäischer Grundrechte und inländischem Leimutterschaftsverbot’ [2013] IPRax 282, 283, 287–9; Claudia Mayer, ‘Ordre public und Anerkennung der rechtlichen Elternschaft in internationalen Leihmutterschaftsfällen’ (2014) 78 RabelsZ 551, 570–78; Dieter Henrich, ‘Art 19 EGBGB’ in Julius von Staudinger and others (eds), J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch (Sellier/de Gruyter 2014) para 100a, 123 ; Michael Wells-Greco, The p. 1076Status of Children arising from Inter-Country Surrogacy Arrangements (Eleven International Publishing 2015) 602–652). Along these lines, the Constitutional Court of Austria recognized a decision of the US state of Georgia and Ukraine affirming the legal parentage of both the intending parents respectively (Austrian Constitutional Court, 14 December 2011, No B13/11-10; 11 October 2012, No B99/12). Furthermore, the ECtHR condemned on 26 June 2014 (Mennesson v France, App no 65192/11 and Labassee v France, App no 65941/11) the above-mentioned French Supreme Court decision (Cour de Cassation, 6 April 2011, No 09-17130) for violating the children right to respect for their private life under art 8 ECHR (but not that of the intending parents by refusing to establish paternity by all means. The French Supreme Court eventually altered its position to allow registration of paternity of the intended father established in a birth certificate issued in Russia (Cour de cassation, 3 July 2015, No 14-21.323 and No 15-50.002))., The German Federal Court of Justice was even more generous (German Federal Court of Justice (BGH), 10 December 2014 [2015] NJW 479) in recognizing a decision of the US state of California asserting the legal parentage of two German male registered partners, relying on ordre public atténué. Arguably, in light of the best interests of the child and the stability and continuity of the status, the original kinship of the intending parents is preferable to the ex post establishment of legal parentage by adoption ((contra: Chris Thomale, Mietmutterschaft (Mohr Siebeck 2015) 101-105; see →Surrogacy). It is left to further developments of case law whether to extend the scope of recognition to maternity of the intending mother, whether to require a genetic link between the child and (at least) one of the intending parents (see ECtHR, 27 January 2015, Paradiso and Campanelli v Italy, App no 25358/12; ECtHR, 21 July 2016, Foulon v France, App no 9063/14 and Bouvet v France, no 10410/14; Swiss Federal Supreme Court, 21 May 2015 (BGer 5A_748/2014) and 14 September 2015 (BGer 5A_443/2014)), and whether to refuse recognition when the surrogate mother turns down to give up the child.

3. Legitimation

Countries that still uphold the legal institution of legitimation in their substantive law maintain specific choice-of-law rules on legitimation as well. Pursuant to Greek choice-of-law rules, legitimation by the parents’ subsequent marriage is subject to the law governing the effects of marriage, and legitimation by state act to the national law of the father (art 22 Greek CC). As more recent legislations, Japan and the Republic of Korea rely on alternative connecting factors, pointing for all types of legitimation to nationality of the father or the mother, in addition to the child’s nationality (art 30 Japanese PILA) or habitual residence (art 42 PILA of the Republic of Korea). Comparable to kinship, alternative connecting factors are often employed for legitimation pursuant to the ‘favour principle’ to abide by the best interests of the child (‘favor legitimationis’).

On the other hand, a number of countries set aside specific conflicts rules on legitimation when they abolished legitimation in substantive law. Even so, the question of legitimation under foreign law may still arise as an incidental question of registration, family name, parental responsibilities, maintenance or inheritance. Hence, the doctrine and case-law seek to fill the gap de lege lata in various countries. In France and Germany, some academics characterize legitimation as a matter of constituting kinship and suggest that general choice-of-law rule on kinship, ie art 311–14 French CC or art 19 German EGBGB, be analogously applied (Pierre Mayer and Vincent Heuzé, Droit international privé (11th edn, LGDJ 2014) para 638; Christian von Bar and Peter Mankowski, Internationales Privatrecht, vol 1 (2nd edn, CH Beck 2003) para 213). However, other German authors characterize legitimation as a legal effect of the established kinship, so they either assert an analogous application of choice-of-law rules on the parent–child relationship that refer to the child’s habitual residence (art 21 German EGBGB) (Peter Huber, ‘Die ausländische Legitimation zwischen Aufenthaltsrecht, Heimatrecht und deutschem Geburtenbuch’ [2000] IPRax 116, 118–19) or an analogous application of choice-of-law rules on adoption to designate the law governing the effects of marriage or the national law of one parent alternatively (arts 22(1) and 23 German EGBGB, see Christine Budzikiewicz, Materielle Statuseinheit und kollisionsrechtliche Statusverbesserung (Mohr Siebeck 2007) 364–93). The last solution arguably deserves support, given that legitimation means a subsequent improvement of the child’s status in light of the child’s best interests, after the legal parentage has been established.

p. 1077To deal with foreign legal systems that uphold legitimation, some countries, unlike in their substantive law, retain specific choice-of-law rules on legitimation. Austria explicitly subjects legitimation to the national law of the father (art 23 Austrian PILA). The Netherlands not only incorporated art 1 of the 1970 CIEC Convention on legitimation by marriage that refers to the nationality of either parent (art 98 Book 10 of Dutch CC), but also took advantage of the possibility to introduce the child’s habitual residence as an additional alternative connecting factor to facilitate legitimation (see art 5 of the 1970 CIEC Convention on legitimation by marriage). On the other hand, Switzerland adopted a special rule limited to the recognition of legitimation effected abroad, referring alternatively to habitual residence or nationality of the child, or to domicile or nationality of one parent (art 74 Swiss PILA). Similarly, England and Wales recognize foreign legitimation by marriage when it is valid under the law of the father’s domicile at birth or marriage (ss 2 & 3 Legitimacy Act; Lord Collins of Mapesbury and others (eds), Dicey, Morris & Collins on the Conflict of Laws (15th edn, Sweet & Maxwell 2012) para 20R-048).

V. Further developments

In light of the large diversity of conflicts rules on kinship and legitimation throughout various jurisdictions, international or regional unification of choice-of-law rules may well be desirable. The Hague Conference on Private International Law is currently examining the feasibility of drawing up a multilateral instrument on legal parentage and other issues surrounding cross-border surrogacy (see Hague Conference on Private International Law (ed), ‘A Study of Legal Parentage and the Issues Arising from International Surrogacy Arrangements’ (2014) (available at <www.hcch.net>)). As of 2017, the main focus of this project is placed on the recognition of parentage established by foreign birth certificates or court decisions, which include surrogacy cases (see ‘Report of the Experts’ Group on the Parentage/Surrogacy Project (Meeting of 31 January-3 February 2017)’(2017)(available at <www.hcch.net>)).

In the EU, there are no specific instruments that regulate choice-of-law rules on kinship or legitimation to date. Pursuant to the ‘Regulation on (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the EU and amending Regulation (EU) No 1024/2012’, public documents on the legal parentage issued by a Member State will unfold their evidentiary effects in other Member States without legalization or similar formality. Yet, this regulation only deals with the authenticity and not with the recognition of the contents and effects of public documents. If instead the ‘principle of recognition’ developed by ECJ case-law for family names (among others Case C-148/02 M Carlos Garcia Avello v Belgium [2003] ECR I-11635; Case C-353/06 Stefan Grunkin & Dorothee Regina Paul [2008] OJ C 313/3) were extended to legal parentage, it could enhance the stability of the status of a person within the EU (Kees Jan Saarloos, European Private International Law on Legal Parentage? Thoughts on a European Instrument Implementing the Principle of Mutual Recognition in Legal Parentage (Océ Business Services 2010) 289–331). However, the appropriacy of such policy, its foundation in EU primary law and its compatibility with the fundamental principles of private international law still need to be carefully examined (Heinz-Peter Mansel, ‘Anerkennung als Grundprinzip des Europäischen Rechtsraums. Zur Herausbildung eines europäischen Anerkennungs-Kollisionsrechts: Anerkennung statt Verweisung als neues Strukturprinzip des Europäischen internationalen Privatrechts?’ (2006) 70 RabelsZ 651, 705–31; see →Recognition of legal situations evidenced by documents).

Literature

  • Christoph Benicke, ‘Kollisionsrechtliche Fragen der Leihmutterschaft’ [2013] StAZ 101;

  • Christine Budzikiewicz, Materielle Statuseinheit und kollisionsrechtliche Statusverbesserung (Mohr Siebeck 2007); Lord Collins of Mapesbury and others (eds), Dicey, Morris & Collins on the Conflict of Laws (15th edn, Sweet & Maxwell 2012); Konrad Duden, Leihmutterschaft im Internationalen Privat- und Verfahrensrecht. Abstammung und ordre public im Spiegel des Verfassungs-, Völker- und Europarechts (Mohr Siebeck 2015);

  • Hague Conference on Private International Law (ed), ‘A Study of Legal Parentage and the Issues Arising from International Surrogacy Arrangements’ (2014, available at <www.hcch.net>); Hague Conference on Private International Law (ed), ‘The Desirability and Feasibility of Further Work on the Parentage / Surrogacy Project’ (2014, available at <www.hcch.net>); Dieter Henrich, ‘Art 19 EGBGB’ in Julius von Staudinger and others (eds), J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuchp. 1078 (Sellier/de Gruyter 2014);

  • Peter Huber, ‘Die ausländische Legitimation zwischen Aufenthaltsrecht, Heimatrecht und deutschem Geburtenbuch’ [2000] IPRax 116;

  • Brigitta Lurger, ‘Das österreichische IPR bei Leihmutterschaft im Ausland: das Kindeswohl zwischen Anerkennung europäischer Grundrechte und inländischem Leimutterschaftsverbot’ [2013] IPRax 282;

  • Heinz-Peter Mansel, ‘Anerkennung als Grundprinzip des Europäischen Rechtsraums. Zur Herausbildung eines europäischen Anerkennungs-Kollisionsrechts: Anerkennung statt Verweisung als neues Strukturprinzip des Europäischen internationalen Privatrechts?’ (2006) 70 RabelsZ 651;

  • Claudia Mayer, ‘Ordre public und Anerkennung der rechtlichen Elternschaft in internationalen Leihmutterschaftsfällen’ (2014) 78 RabelsZ 551;

  • Pierre Mayer and Vincent Heuzé, Droit international privé (11th edn, LGDJ 2014);

  • Kees Jan Saarloos, European Private International Law on Legal Parentage? Thoughts on a European Instrument Implementing the Principle of Mutual Recognition in Legal Parentage (Océ Business Services 2010);

  • Ingeborg Schwenzer (ed), Tensions between Legal, Biological, and Social Conceptions of Parentage (Intersentia 2007);

  • Andreas Spickhoff and others (eds), Streit um die Abstammung: ein europäischer Vergleich (Gieseking 2007); Chris Thomale, Mietmutterschaft (Mohr Siebeck 2015); Katarina Trimmings and Paul Beaumont (eds), International Surrogacy Arrangements: Legal Regulation at the International Level (Hart Publishing 2013);

  • Christian von Bar and Peter Mankowski, Internationales Privatrecht, vol 1 (2nd edn, CH Beck 2003); Michael Wells-Greco, The Status of Children arising from Inter-Country Surrogacy Arrangements (Eleven International Publishing 2015).