Maarten Peter Vink and Gerard-René de Groot
exception, if only one parent is a national and the child is born abroad (see below). In principle, the mother of a child is the woman who gave birth to the child (see e.g. NET 1(1)(c); UK 50(9)). This is in conformity with the case law of the European Court of Human Rights2 and furthermore with the 1962 Convention on the establishment of maternal descent of natural children, of the Commission Internationale de l’État Civil (CIEC).3 Therefore, in principle, a woman does not need to recognize a child born out of wedlock in order to establish a family relationship between herself and the child. However, some civil codes still contain provisions on the recognition by the mother of children born out of wedlock, along with provisions which allow the judicial establishment of maternity.
In very special cases, for example children born as a consequence of an incestuous relationship, some codes provide that the establishment of a family relationship between a child and the mother may be forbidden. Nevertheless, even in such cases the citizenship position of the offspring has to be regulated. For this reason the Italian citizenship law, uniquely in Europe as far as we know, explicitly states that the provisions on recognition or judicial establishment ‘also apply to any person whose paternity or maternity cannot be declared, provided that their right to maintenance has been legally recognised’ (ITA 2(3)).
Special ‘descent’ citizenship problems may also arise if a third person is involved in the birth of the child. One can think in particular of the growing number cases of children being born of surrogate mothers. In these cases, due to a possible controversy about the determination of who is the biological mother of the child, the child is in risk of being stateless, if the state of the surrogate mother’s citizenship does not attribute that citizenship to the child and the state of the commissioning mother does not attribute its citizenship either because the commissioning mother did not give birth to the child. In some cases the child may be able to acquire the citizenship of the husband or partner of the commissioning mother following the recognition by the partner of the paternity, but this is not always the case. Practices vary on a country by country basis. The Council of Europe, through Recommendation 2009/13, therefore recommends in Principle 12 that states ‘apply to children their provisions on acquisition of nationality by right of blood if, as a result of a birth conceived through medically assisted reproductive techniques, a child-parent family relationship is established or recognised by law’. The explanatory memorandum adds:
In order to avoid cases of statelessness, the following rules should be observed. If the child-parent family relationship is recognised in the state of nationality of the commissioning mother or father the provisions of that state on the acquisition of nationality jure sanguinis have to be applicable. The child will be fully integrated into the family of the commissioning parents, which justifies – as in the case of adopted children – the acquisition of the nationality of the parents. Moreover, in many cases the authorities of the state of the commissioning parents will not be informed about the fact that the woman mentioned as the mother on the birth certificate did not give birth to the child. If this fact is discovered by these authorities after a considerable period of time, it should not lead to loss of nationality. 4
2 3 Marckx v Belgium, ECHR 13 June 1979, ECHR Series A, Vol. 31. Convention relative à l'établissement de la filiation maternelle des enfants naturels, Brussels 12 September 1962. See also the 1975 European Convention on the Legal Status of Children Born out of Wedlock (ETS 85).
4 Recommendation CM/Rec(2009)13 of the Committee of Ministers to member states on the nationality of children. Adopted by the Committee of Ministers on 9 December 2009 at the 1073rd meeting of the Ministers' Deputies. Explanatory memorandum on Principle 12.
RSCAS/EUDO-CIT-Comp. 2010/8 - © 2010 Authors