Intended parents can still appeal to a married surrogate mother, the Constitutional Court has ruled

The Constitutional Court has ruled in a new judgment that it should still be possible for prospective parents to have their child recognized when they appeal to a married surrogate mother. This was not possible until now due to a provision in the Old Civil Code.

The concrete case revolves around a gay couple who wanted to have a child together. They appealed to a surrogate mother, the sister of one of the men, for their wish to have children. The other man of the couple donated sperm cells, and is therefore the biological father of the child. The eggs came from an anonymous donor.

After the birth of the child, the biological father also wanted to legally recognize his paternity. He filed a claim for this with the court of first instance in Liège, but that court encountered a problem.

Presumption of paternity

There is such a thing as the presumption of paternity: when a married mother gives birth to a child, her husband is legally the father. That presumption of paternity can be contested, for example by the person claiming to be the biological father.

But there is an exception with artificial insemination. The old Civil Code says that once a couple has given permission for artificial insemination, paternity can no longer be contested. The law assumes that married couples who give permission for artificial insemination are also the intended parents of the child and therefore want to keep the child themselves. But that was not the case here.

Married surrogate mother

In this case, the surrogate mother and her husband had consented to the artificial insemination. As a result, her husband automatically became the legal father of the child (and not the gay couple). The intention was that the biological father would then challenge this, so that he could also become the legal father. But according to the court of Liège, this is not possible because of that exception. The husband of the surrogate mother had to remain the legal father, even if he did not want to. The question was then submitted to the Constitutional Court.

The Constitutional Court has now ruled that if a married surrogate mother and her husband do not want to be intended parents, it should still be possible for the biological father to contest the presumption of paternity, and to be recognized as the legal father himself.

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