A recent legislative amendment has significantly impacted how the presumption of paternity is handled in surrogacy cases, particularly when the surrogate mother is married. Previously, the presumption of paternity could not be contested if the husband had given consent for artificial insemination, even if he was not the biological father. However, a recent ruling by the Constitutional Court has led to a revision of this rule, considering possible discrimination and the essence of parental intention.
These developments have important implications for both the legal and societal aspects of surrogacy arrangements. This legislative amendment provides clarity on the fate of the presumption of paternity in surrogacy arrangements.
What does this legislative amendment say?
Before the amendment – article 318 § 4 of the Civil Code and the potential inadmissibility in cases of artificial insemination.
Article 318 of the old Civil Code regulates the possibility of challenging the presumption of paternity of the mother’s spouse, which is established in article 315 of the old Civil Code.
The former article 318 of the old Civil Code stated the following:
- §1. Unless the child has possession status with regard to the spouse, the presumption of paternity can be challenged before the family court by the mother, the child, the man whose descent is established, the man claiming paternity of the child, and the woman claiming co-maternity of the child.
- §2. The mother’s claim must be filed within one year after birth. The spouse’s claim must be filed within one year after discovering that he is not the father of the child, that of the man claiming paternity of the child must be filed within one year after discovering that he is the father of the child, and that of the child must be filed at the earliest on the day it reaches the age of twelve and at the latest on the day it reaches the age of twenty-two or within one year after discovering that the spouse is not its father[.] The claim of the woman claiming co-maternity of the child must be filed within one year after discovering that she has consented to conception in accordance with Article 7 of the Law of 6 July 2007 on medically assisted reproduction and the destination of surplus embryos and gametes, and that conception thereof may result. […]
- §3. Without prejudice to the provisions of §§ 1 and 2, the presumption of paternity is nullified if it is proven by all legal means that the person concerned is not the father. […]
- §4. The claim to challenge the presumption of paternity is inadmissible if the spouse has given consent to artificial insemination or to any other act aimed at reproduction, unless the conception of the child cannot result therefrom.
Thus, paragraph 4 of article 318 of the old Civil Code introduced a ground of inadmissibility for the claim to challenge the presumption of paternity, regardless of who filed the claim, when the spouse had given consent to the artificial insemination of his spouse or to any other act aimed at reproduction unless the conception of the child could not result therefrom.
The ruling of the Constitutional Court dated 30.02.2023
On March 30, 2023, a ruling of the Constitutional Court was issued following several prejudicial questions that were raised.
The facts leading to the questions raised were as follows:
- On one hand, there is a male homosexual couple with a desire for children or the intended parents.
- On the other hand, there is a married couple, the surrogate mother (who is also the sister of one of the intended parents) and her husband.
- In the context of an agreed surrogacy arrangement, eggs from an anonymous donor fertilized with the gametes of one of the intended fathers are implanted in the surrogate mother’s uterus.
- The surrogate mother is married.
- Before the birth of the child, the intended father, whose material was used for fertilization, files a claim to challenge the paternity of the surrogate mother’s husband, who is presumed to be the father of the unborn child.
- The intended father also requests the court to establish the paternity of the child.
The court was asked about the compatibility of Article 318 § 4 of the Civil Code with Articles 10, 11, and 22 of the Constitution, whether read independently or in conjunction with Article 8 of the European Convention on Human Rights.
This is the interpretation that it leads to the inadmissibility of the claim to challenge the presumption of paternity, filed by the man claiming paternity of a child conceived through surrogacy by a married surrogate mother, without the surrogate mother or her husband having intended parenthood with respect to the child born from that surrogacy, which was used to realize the intended parenthood of the man claiming paternity.
In practice, strict application of article 318 § 4 of the Civil Code meant that the presumption of paternity could not be challenged in the context of a high- or low-technology surrogacy arrangement carried out with a married surrogate mother, in the hypothesis that the surrogate mother’s husband was aware of the artificial insemination.
This was even when neither the surrogate mother nor her husband desired to assume parenthood of the unborn child.
The court, therefore considered that when article 318 § 4 of the Civil Code is interpreted in such a way that it leads to the inadmissibility of the claim to challenge the presumption of paternity in the case of surrogacy by a married woman, when neither the surrogate mother nor her husband have intended parenthood with respect to the unborn child, which the court must examine in concreto, article 318, § 4, of the old Civil Code violates articles 10, 11, and 22 of the Constitution, read in conjunction with article 8 of the European Convention on Human Rights.
Entry into force of the new article 318 § 4 of the Civil Code on 08.04.2024
On April 8, 2024, the legislative amendment came into effect, whereby the legislator implemented the case law of the Constitutional Court into Article 318 § 4 of the Civil Code.
The aforementioned paragraph now reads as follows:
- § 4. The claim to challenge the presumption of paternity is inadmissible if the spouse has given consent to artificial insemination or to any other act aimed at reproduction in the context of a shared parenting project between the spouses unless the conception of the child cannot result therefrom. The family court shall, in any case, examine whether such a shared parenting project existed.
Intended parenthood as an essential element – assessment on a case-by-case basis by the family court
It can thus be stated that intended parenthood constitutes an essential element to be taken into account in the application of the rules concerning the challenge of the presumption of paternity. Whether intended parenthood exists or not shall always be examined on a case-by-case basis by the family court.
