suggested citation: M. Musson, L’appréhension par la proposition de règlement européen sur la filiation de la transidentité ou de l’intersexuation d’un parent, lceonline (www.lceonline.eu), 3/2024, II/Rubriche.
key words: filiation, discrimination, applicable law
abstract: The aim of this contribution is to examine the way in which a parent’s transidentity or intersexuality is dealt with in the proposed European regulation on parentage, on the basis of a number of factors which demonstrate that the text takes account of these types of hypothesis. The proposal for a European regulation on parentage is an important example of this, in that a close examination of the terms used shows that the text takes account of “extraordinary” hypotheses: those of a parent’s transidentity or intersex status. In particular, in addition to the best interests of the child, which is the primary aim of this proposal, the interests of LGBTIQ people also play an important role: the proposed European text is part of the “strategy for equal treatment of LGBTIQ people for the period 2020-2025” presented by the Commission. This concern, which is also reflected in the prohibition of all discrimination on grounds of sexual orientation under Article 23 of the Charter of Fundamental Rights of the European Union, is reflected in the proposed regulation, which aims to facilitate the establishment and recognition of parent-child relationships between children and LGBTIQ parents. In this respect, the new conflict-of-laws rules on the establishment of parentage make it possible to include cases where a parent is transgender or intersex, and protect the establishment of parentage in their regard (I). In addition, the public policy exception that can be invoked by a Member State is limited by the requirement of non-discrimination, providing greater protection for LGBTIQ parents (II). Despite these advances, the draft regulation remains silent on a number of issues relating to the procedures for establishing parentage in the most complex cases, which are left to the discretion of the Member States (III).
