Proposition 54K1658

Projet de loi modifiant le Code civil en ce qui concerne la reconnaissance prénatale d'un enfant par un parent non marié.

General information ¶

Authors

MR Gautier Calomne, Denis Ducarme, Gilles Foret, Philippe Goffin, Vincent Scourneau, Damien Thiéry, Stéphanie Thoron, Sybille de Coster-Bauchau
Open Vld Sabien Lahaye-Battheu, Carina Van Cauter

Submission date

Feb. 17, 2016

Official page

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Status

Adopted

Requirement

Simple

Subjects

descendant civil law family law civil union cohabitation

Voting ¶

Voted to adopt

Groen CD&V Ecolo LE ∉ Open Vld N-VA LDD MR VB

Voted to reject

PS | SP DéFI PP

Abstained from voting

Vooruit PVDA | PTB

Party dissidents ¶

• Philippe Blanchart (PS | SP) voted to adopt.
• Olivier Maingain (MR) voted to reject.

Contact form ¶

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Discussion ¶

Feb. 9, 2017 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, this bill is one of those that should gain the approval of the greatest number, so many of us share the goal. It addresses the prenatal recognition of a child by unmarried parents. It appears that, while the legislation remains silent in this regard, the civil state services of several municipalities of the Kingdom apply by authority the rules stating, for example, that a declaration cannot be made before six months of pregnancy. The proposal aims to allow prenatal recognition by an unmarried parent as soon as a medical certificate establishes that pregnancy.

Although the text was not supposed to raise controversy, Ms. Ozen, of the PS, issued an observation. She was concerned about whether this type of legislation would not give a status to the unborn child and put at risk the legal criteria allowing abortion in respect of a certain deadline. The Commissioners who voted in favour of this text, and I would like to recall it here, considered that the two situations should not be amalgamated, since they were two completely separate issues. Well understood, the proposal allows prenatal recognition from the medical recognition of the child – without any other possible interpretation.

The text was adopted unanimously, minus the abstinence of Ms. Özen.

Mr. Speaker, dear colleagues, first of all, and contrary to what some would like to suggest, it is in no way a question here to go back to the status of the unborn child or the right to abortion, which the MR has always supported. We will never return to that.

As you know, this bill aims to uniformize a practice that, although established in many municipal administrations, does not correspond to the prescribed law on prenatal recognition by unmarried couples. As you also know, this works when children are born and viable. The sole objective of this proposal is to put citizens on an equal footing by ensuring that in matters of filiation, a child equals a child, without any disparity according to the commune of birth.

Today, many administrations require a six-month period of pregnancy before prenatal recognition; others do not require it. A tour of the horizon of about forty administrations of the country allowed to realize this. Take, for example, three neighboring municipalities in Namur Province: Jemeppe-sur-Sambre, Fosses-la-Ville and Sambreville. While the first two require a six-month pregnancy certificate, the third does not impose any delay. So, in this example, I am a resident in Jemeppe-sur-Sambre, I have a friend who lives in Sambreville, in my municipality, I have to wait six months while the companion of my friend was able to make a recognition immediately. If I take your municipality, Ms. Özen, in Aiseau-Presles, there is also no requirement of deadline. It is therefore really a matter of clarifying the law so that the citizen, regardless of his municipality, can make a prenatal recognition as soon as the pregnancy is attested by medical staff.

Dear colleagues, I find it necessary to return on two very important elements: first, on the necessity of this modification of the Civil Code; then, as our colleague Christian Brotcorne has recalled in committee and as I have already said, on the fact that we must not give this text a scope that it does not have.

With regard to the necessity of this proposal, I would like to thank the Government and, in particular, Mr. The Minister of Justice, whom I had questioned about this two years ago, for their support for the proposal.

On this subject, in the committee, the representative of the minister was, one cannot be clearer, indicating that an investigation shows that there is a difference in treatment depending on the civil state officer. The law does not set a threshold. It is in the best interests of the child to be recognized as soon as possible. In the past, the legislator had already intervened in this direction. It is in the interests of legal certainty and uniformity that The Minister and the Government support this proposal.

We must not give this document a scope that it does not have. This clarification of the Civil Code will under no circumstances have the effect of indirectly recognizing a status to a child born unviable, Mrs. Özen. Simply because recognition only comes into effect once the child is born viable. It is in no way about changing the substance of the law of the Civil Code, but only the form, in order to bring all citizens on an equal footing. This element was also confirmed by the representative of the minister in commission, since he indicated that the status of the child is not affected because recognition produces its effects only once the child is born viable and that, of course, the mother must always give its consent to the recognition of the child.

In conclusion, I would like to thank all the colleagues who understood the importance of the aspects of what I just presented to you. As for the MR group, I would like to welcome the fact that this proposal almost received unanimous votes in the committee.

Finally, since the question of the scope of this bill has been settled and especially because a child must be equal to a child in Belgium, and also in matters of filiation, whether the parents are originating in Jemeppe-sur-Sambre, Sambreville, Aiseau-Presles, Ostende or Ixelles, I invite our colleagues who abstained today to support this bill which has the sole objective of consecrating the major principle of equality of citizens before the law.

Mr. Speaker, here we are facing a bill that aims to allow a parent of an unmarried couple to recognize a child at any time on the basis of a certificate of pregnancy issued by a doctor.

First of all, it can be said that the bill promotes legal certainty by ending differences in the practices applied by the administrations, as you recalled, Mrs. Thoron; and that it will facilitate the actions of a mother in the event of the death of the other parent.

If the current law is silent on how long it takes to recognize a child before birth, we cannot limit ourselves to the sole argument of legal certainty. Does it seem logical to you to establish a filiation bond with a fetus or embryo while the mother is potentially still likely to practice an abortion? We are given as a justification that recognition will only take effect after birth. Again very happy! But there is, you will admit, a legal bizarre that is rooted in the law.

Of course, there are different legal and administrative practices between municipalities. You have given practical examples. This must be stopped. But we do not intervene in the right direction, neither in the substance nor in the form, since the chosen means are questionable. You know, like me, that to counter an administrative practice, a circular would be enough to harmonize the practices. Making a law is totally useless. This is a mistake of legal methodology and the use of the law for administrative purposes.

If the law does not provide for a time limit, the policy of some municipal administrations does not appear absurd, as they require a time limit of six months, which in fact corresponds to the time limit of 180 days required by Article 80a of the Civil Code concerning the recognition of children born without life. This is little or enough of the current limit of viability, which is 25 weeks from the design.

This proposal represents a threat that weighs again, as do the proposals for a law on unborn children, on the rights of women in Belgium. This recognition of parents is part of a dangerous process. This is primarily an implicit recognition of the fetus, since it gives a parent the opportunity to recognize the unborn child from the first days of pregnancy. What is the next stage?

Madame Özen, there is one element that I do not understand in your reasoning. If you are believed, even if you do not say it so clearly, the proposal that we would vote today, especially if it was implemented very early in the state of pregnancy, would de facto prevent parents, if I hear you rightly, by a form of recognition beyond what they wish for this child, from still practicing an abortion if they were still in time.

On the contrary, I believe that the recognition as it is suggested today would not prevent the exercise of the right to abortion for reasons that would arise after that recognition, provided that the interested parties are in the conditions of the law. I don’t understand exactly what you are afraid of in this text. You risk creating an amalgam that has no reason to be and that could be dangerous for the thesis that you seem to want to defend. Instead, it is necessary to avoid at any cost making a link between the two legislations.

I just say that from that point on, there is a legal recognition without delay that is set. The person is pregnant. After about 15 days, she will take blood. There is a recognition of her pregnancy, which she can put forward. She goes to the administration and we will recognize the filiation in her couple. What if there is an interruption of pregnancy? What effect will it have? Why do we undertake this recognition?

I am always surprised by the way you mix things together.

Please allow me to continue my presentation in Dutch.

It is about the recognition of a child.

Mrs. Özen, I continue to be amazed at the way your group is repeatedly trying to link conversations and proposals – today it is about recognizing a child that has not yet been born – to abortion regulation, because that is what you have to do. As a good lawyer, you should know, as the colleague just said, that recognition becomes really real only when the child is born and is viable. That recognition does not have the value you wish to give it. This does not prevent the current abortion legislation from being applied. I continue to find out how you always want to interpret the rules differently than how they are ultimately.

Mrs. Becq, I am not making an amalgam. I simply say that this is a dangerous process. Why Why ? Because from the moment when there is an implicit recognition of the fetus, since it is given the possibility to recognize the child to be born in the first days of its conception, it is an open door to an official recognition of the fetus. So, whether we are aware of it or not, it is a misguided way of attacking in the end the interruption of pregnancy.

Ms. Özen, you actually tell parents who are happy that they are pregnant that they should not be happy about it but that they should wait with joy until the child is born or until the period within which an abortion may be possible has expired. However, all science says that it is very important how parents experience their pregnancy to know how welcome their child is and that this affects the later development. However, you say that parents should not actually be happy when they only know they are pregnant.

Mrs. Ozen, I agree with your previous remarks and I think you are confusing. We are not in the debate about abortion. Nothing is questioned in this regard. The current provision is not modified at all, because today, the Civil Code allows this recognition.

The principle simply aims to uniformize and give a fairer time frame so that all municipal administrations can rely on this element and apply the same functioning. I also want to say that from the moment a couple is married, the father is the husband. We agree very well. Officially, it is the basic act of marriage that makes the filiation established. In this case, it is simply about doing the same for the recognition of filiation, paternity. This is the same principle and does not change the current provision. There is no discussion about abortion at all. This is not the case, and I think Mr. Brotcorne and Mrs. Becq also said so. We are not in that framework at all.

This is not a discussion about abortion, for the simple reason that the fetus has no legal personality. The Civil Code is clear about this. In order to be a legal person, the child must be born alive and viable. Therefore, the bill provides that recognition only has effects when both cumulative conditions, living and viable birth, are met.

The current law does not specify a threshold or age limit. This is only a clarification because of the regional differences. I do not see where the discussion comes from. We didn’t have them in the committee, unless it would have been avoided by me.

For good understanding, I repeat it. Per ⁇ it will eventually go on. Ms. Thoron and other colleagues in the committee have confirmed that the scope of the text is only clarifiable, with the understanding that recognition remains without effect if the child is not born viable. This was reiterated by some colleagues. This is also evident in the text. Nothing is changed about that.

Your concern, Mrs. Özen, may be helped in this. We may still be able to convince you to agree with Mr. Thoron’s excellent proposal.

I partially agree with this proposal. It is necessary to uniformize.

As a civil state officer, I can say that it is always easier to have clear rules when citizens have to make acts, especially when it comes to a matter as sensitive as the one that occupies us. Therefore, I welcome the part of the bill that aims at uniformization.

However, the proposal for examination is a problem for us in that the declaration can be made from the first day of pregnancy.

Mr. Brotcorne, you mentioned the couple that decides to abort. But if the woman decides to do so, what will be the pressures she will undergo since an act has been made?

Furthermore, in the case of abortion or the loss of the child, there will remain a trace, while this is not the case for married couples. The case will remain in the civil records. If you have any doubts, I invite you to consult, like me, the services of the administration.

Mr President, [...]

And then ? So, it makes me a problem. Indeed, your reflection "and then?" is the proof that this is an open door for the recognition, tomorrow, of the fetus.

It is a free choice!

Mr. President, Mrs. Fernandez, you are talking about “trace”. But it will simply become an act without object.

As said recently, Mrs. Thoron, when a married couple has a child, the husband is presumed to be the father. The effects come out when the child is born alive and viable.

Why not recognize this right to two people who are not married and who decide to conceive a child? Why remove the right to the alleged father to be able to declare, with the consent of the mother, that the lady with whom he has a relationship is pregnant? Can the law not simply recognize a situation of fact without attaching to it rights which are not here given or taken back in the discussion?

We fully agree on this. You can play with words and spend hours talking about them, but you don’t talk about the same thing. You have been shown many times that we are not talking about the same thing. That is all!

I would like to remind Mr. President. Goffin que mater semper certa est, "the mother as far as she is known" and there is nowhere in the right pater semper certus es." There is, therefore, a presumption which is therefore refragable. Here, you create a right that is not refragable, because there is a declaration of recognition.

However, I would like to respond to the first argument put forward by Mrs. Thoron, which, as stated, consists in uniformising administrative practices. There is a methodological concern to do so through a law because a circular would have been sufficient to harmonize an administrative practice, first.

Second, under the cover of helping women in their actions, in fact, it weakens – I say – gradually the access to abortion. Why Why ? What is easier than limiting the right to abortion by arguing that it is not logical for a woman to abort an unborn child while the filiation has already been established. For these two reasons, we will not support this text.

I will answer very briefly. by Massin. There is a presumption. How can you then explain to Mr. and Mrs. everyone who is not necessarily a lawyer, that two people – I return with my very simple example – have a relationship that concludes with the pregnancy of Mrs. and that Mr., however with the agreement of Mrs. , can not simply recognize a fact, namely that Mrs. is pregnant? It is explained to the gentleman who, thanks to the lady, was able to recognize that he was at the origin of this, that the possible effects will only come out when the child will be born alive and viable.

Therefore, no legal value is attached other than a fact has occurred and that an act will simply be able to confirm it. I cannot understand that it is difficult to understand.

Mr. Goffin, I fully understand your reasoning. That said, can you confirm me that a man who has made such recognition will not be able to initiate legal action against a woman wishing to carry out an abortion?

The reasoning will be applied in exact analogy with the situation of a married couple.

It is not at all the same thing! You know it properly!

The mother is the sole owner of this right. That is all!

and no. This will not be the case at all!

Yes, because we do not touch that right.

In the case of a married couple, no act is made. This means that the husband cannot oppose it. Tomorrow, an administrative act will be put forward which can, therefore, open a right of opposition. We will see what the court will say later, but this possibility exists. This is what we want to avoid!

Mr. Massin, I disagree with you. This right belongs exclusively to the mother. In the case of a married couple, the father cannot object to it. There is a presumption that the husband is the father. This does not give him the right to oppose it.

The proposed text here merely acknowledges a fact. To be clear, “Mr. has put Mrs. Pregnant.” This will not give her the right to oppose the fact that the mother retains the right to decide on abortion.

I hear what Mr. President says. by Massin. I think we try to play with words. I have a solidary brochure. It is noted on the sixth page, regarding the law on abortion and respect for the freedom of choice: “A woman who, for various reasons, believes she is unable to continue her pregnancy must be respected. No one can decide in his place and no one has the right to influence him in one way or another. No one but her can dispose of her body.” What does the law say about abortion? She states that it is the mother who decides and that the father has nothing to say in this regard – as Le Ligueur also reminds in his brochure. Whether the couple is married or not, that does not change anything. The purpose of this document is not to grant an additional right.

Madame Thoron, I totally agree with you. The brochure is perfectly correct. However, the bill will introduce the right to oppose. You will change the legal framework, but you refuse to understand it. You have your position; I have mine. Even if we continue to discuss and exchange arguments, we will not change our mind.

You have to try anyway.

I find a fault in the legal reasoning of our colleague Massin. I fully agree with the intervention of the Chairman of the Justice Committee, Mr. by Goffin. Eric Massin forgets that this act to which he wants to give effects...

and no.

Yes, that is what you say!

The [...]

One after the other. First of all mr. and broccoli.

The legal reasoning has to come to an end. This act shall have legal effect only if the child is born viable. If, in the meantime, there was an abortion, it is obvious that this act will produce no effect since the child is not born viable.

He will be able to say. You know it, Christian.

The [...]

The only fact that he can say it is a restriction.

Ladies and gentlemen, I will complete the speech of Mr. and broccoli. Since, in a married couple, the husband is presumed to be the father, he could also appear before the judge by invoking this argument. But that doesn’t work, because it’s only the mother who can make the decision. The presumption that the husband is the alleged father does not, however, give him the right to go to the judge and say, “No, I deny my wife the right to have an abortion.” The same principle prevails here.

I must admit, however, that the debate may be exaggerated. Nevertheless, I cannot very well understand why civil law and the status of the person need to be modified – because these are provisions relating to the status of persons – in order to resolve an administrative procedure problem.

I think we have used an inappropriate legal path. I’m not going to say, like Mr. Massin, that the provision subject to our assessment would have the effect of recognizing a right to the father to oppose the right to abortion freely exercised by the mother. I will not go until then.

I fear that the scope of the provision may not have been properly assessed and I would like to know if, for the author – but in this case, it should have been more precise in the text –, in the Civil Code, a recognition of the conceived child is granted. However, this is the consequence, which has no equivalent for the husband. In fact, it is not correct to say that there is a total legal similarity.

Not at the time of design. At the time of birth! It is very different. There is a big difference!

So I wonder what will be tomorrow the possible legal consequences of this recognition of the child conceived by the Civil Code. This is still a completely new notion, a little surprising, and all this to solve a problem of administrative formalities to know from which moment the recognition can be performed with the civil state service.

I acknowledge that, there, the author has nevertheless made the choice of a legal path that risks opening to applications. I will not go, as Mr. Massin or others, to say that the right to abortion could be challenged. I do not believe it. Honestly speaking, I do not believe that this law can be interpreted as a restriction to the law on the decriminalization of abortion.

On the other hand, in terms of civil liability, if there were acts that harm the conceived child, since there is now a legal recognition of the conceived child that is acquired, there I begin to wonder whether you are not going beyond what was the positive right at the moment.

Recognition of a conceived child may take place at any time. It is innovative as a concept in civil law. I believe that an exaggerated legal formula has been used to solve a problem of pure administrative formality. This is my appreciation of this system.

I am a civilist, not a “familialist.” But, from the time of my studies of law, I was still taught this adage: infans conceptus pro nato habetur, the conceived child can be regarded as a legal person.

Mr. Maingain says that the conceived child is not a reality. and yes! I can make a donation to a child to be born, I can put a child to be born on my will. It has a legal reality. This is not an imagination at all. It is a reality.

I have given all my arguments, I will not repeat them forever. I think we went through the debate. Everyone has their point of view, I keep my own. I agree in part with Mr. Maingain said: the way of law is not the most suitable for regulating an administrative formality or administrative practices that are different from one municipality to another.

If there is a recognition of filiation at any time of conception, it is an open door for a questioning of abortion in the future.

I would have wanted to have a little more clarification from the members of the Justice Committee because I am told that this possibility already exists. If this is the case, the questions we ask ourselves are already being asked, and without creating problems. Why is it a problem if we change the law and it is not a problem if we don’t change it? It is already possible for a future father to recognize his child from conception.

The President of the Justice Committee, Mr. Goffin is among us.

Listen to you, Mrs. Gerkens and Mr. There is the impression that a new law is being created and a new article is being written. This article already exists. The only thing that does not provide the article as it is written is a deadline. He does not speak of the moment, it is true, but the article exists. Today, I do not know if this is the case in your municipality, Mrs. Thoron cited municipalities in which this is possible from the first day. This is already the case. Therefore, one does not create something new, one creates legal certainty by clarifying the text by saying, "This can be done at such a time."

You said earlier that this could be done by circular. This is not the first time in the Civil Code that deadlines are provided. It is not unusual to provide for this in the Civil Code. This is the case here. A new right is not created; it is simply specified.

When you listen, you feel like you’re creating something that doesn’t exist. This is not the case and you must acknowledge it. "It might make you think that," but it is not the case.

It would have been much simpler to specify that this was only possible after the expiration of the three-month period.

There is no need to specify it, since it does not affect the problem of abortion at all. We have given all the arguments. We will not restart the debate.

Mr. Goffin, do you know that in some municipalities, one expects the expiration of this deadline and in other not? I can understand the arbitrary, but the communes that are more restrictive and ⁇ more protective of certain rights will no longer be able to say tomorrow: “No, I want to wait until the deadline expires to allow this woman to say to herself that she wants to proceed to such thing.”

No, it is not arbitrary. The arbitrary will exist tomorrow.

Mr. Speaker, colleagues, I did not initially intend to give a presentation, but I will do it anyway.

I continue to be amazed at the legal texts as they exist today, which stipulate that a number of rights or recognition, which is still possible today, gives legal personality to a child only at the moment when it is born alive and viable. That recognition is thus established because in this way, for example when the father or co-parent would die before birth, a gift or an inheritance can be given.

At the same time, it is also recognized, specifically for unmarried couples, that the father or co-mother can already indicate that he or she considers the child in becoming important, sympathetic and happy with the pregnancy.

I learn here today, however, that one can only be happy to have a pregnancy at the time when the deadline for an abortion is over. Before that, he or she may not be happy about it and it is a net or someone who can’t have feelings. That’s what I learn here today, through the way the debate is conducted here.

We did not sign the proposal at the beginning because we believed that the law was clear and that recognition is already effectively possible in the civil status services before the 180-day deadline. We were not aware of a problem in this area.

We have also learned from the questions asked by Mrs. Thoron that apparently even by the FOD Justice was given incorrect information, so that also the services of the civil status considered it necessary to see the period of 180 days first pass before they accepted that a declaration or recognition of a birth would take place.

We have said that we would approve this because it gives more clarity. Was it necessary? No, it was not necessary. It simply gives more clarity to the services of the civil state. That is an element.

I admit, however, that it is not about the right, but the fact that a child can recognize by free will before 180 days also shows that one considers that unborn life important, and this is an indication of it. It is about a feeling, a feeling that one may have without creating an additional right. One can be happy with a pregnancy before that 180 days.

At the same time, I make a call to work together on a solution to the situation that is also mentioned in the government agreement. I would like to reiterate here for all clarity that this is true without creating additional rights, without creating legal personality for the unborn life. If parents wish to have an unborn child registered by means of a birth certificate, a solution must be offered, as also stated in the government agreement.

If we still had any doubts about this door that you want to open; after your intervention, Madame, we, the Socialist group, no longer have any.

You are asked to repeat your remarks.

Mrs Becq, I said that if we still had any doubts about this door that you want to open to the attack on the right to abortion before your intervention; after hearing you, we, the Socialist group, no longer have any.