Surrogacy is practised in various countries around the world. In some of these countries it is authorised and legally supervised. But how can a foreign birth certificate of a surrogate child (sometimes itself obtained following a judgment to establish parentage) be recognised in Belgium? The question is difficult and will depend on all the circumstances. Indeed, surrogacy is not regulated in Belgium by law.
At the end of a surrogacy procedure carried out in a country in which it is legal, the parentage of the intended parents can be established abroad:
- either directly on the child’s birth certificate;
- or by a judgment recording the renunciation of the surrogate mother and establishing filiation, with regard to the sponsoring parent(s). The birth certificate is then issued/amended on the basis of the judgment and is therefore the outcome of the concrete implementation of this judgment.
The conditions for the recognition of foreign judgments or foreign documents differ in Belgium. It is better to seek advice on whether it is preferable, depending on your situation, to seek recognition of a judgment or a birth certificate (sometimes following a judgment).
Where the intended parents are Belgian, the argument of violation of public policy is often invoked to oppose the recognition in Belgium of a parentage established by surrogacy abroad.
Faced with a refusal, it is then necessary to institute legal proceedings, the processing of which can often be very long and can leave families in a situation of uncertainty for months.
On 10 April 2019, the European Court of Human Rights issued its first advisory opinion (under Protocol No. 16) on surrogacy. The Strasbourg Court has reaffirmed the pre-eminence of the best interests of the child in the analysis of all situations which concern him or her and has expressed that States must take the necessary measures to allow a child resulting from a surrogacy to establish his filiation link with an intended mother as quickly as possible. Although this opinion then indicates that the mechanism for transcribing the birth certificate is not imposed on States, it nevertheless specifies that the procedure put in place must allow rapid establishment and effective access to the possibility of establishing this filiation link as soon as it has materialised.
In Belgium, in the current state of case law, Belgian courts end up almost systematically recognising at least the biological paternal filiation (on demonstration of this biological link). In this case, it remains possible for the co-parent to then proceed with an intra-family adoption of the spouse’s child.
In recent months, however, it has been noted that more and more decisions have attempted to recognise the double filiation link. These latter decisions are still in the minority, but the development is nevertheless very favourable.
We also note a gradual change in practices: when the intended parents return to Belgium with their child, they sometimes manage to have the filiation transcribed (at least the biological paternal filiation), either straight away by the municipal administration (which is much rarer) or following extensive negotiation with the public prosecutor to have the biological paternal filiation accepted.
Whatever will happen, surrogacy situations remain exceptional due to their complexity and direct and indirect costs.
(Article published in the Journal des Belges à l’Etranger no. 302, May-June 2019, p. 6, www.ufbe.be)