CHANGES IN THE TRADITIONAL FAMILY

A. MOTHERS

1. Is maternity automatically established by the birth certificate?

Under German law, the deciding factor is not the content of the birth certificate, but rather the fact that a particular woman has given birth to the child in question. According to Sect. 1591 of the German Civil Code (Bürgerliches Gesetzbuch /BGB), a child's mother is always the woman who gave birth to it. The birth of a child must be reported to the civil registry (Standesamt) within one week (Sect. 18(1) of the Civil Status Act (Personenstandsgesetz /PStG)). The civil registry records the birth in the register of births (Sect. 21 PStG) and issues a birth certificate on that basis (Sect. 59 PStG). These documents possess special evidential value (Sect. 54(1) and (2) PStG), though evidence may always be presented that the information recorded in the register of births or the birth certificate is incorrect (Sect. 54(3) PStG).

2. Does your jurisdiction recognise any kind of ‘anonymous childbirth’?

The Act for the Extension of Assistance for Pregnant Women and the Regulation of Confidential Births (Gesetz zum Ausbau der Hilfen für Schwangere und zur Regelung der vertraulichen Geburt) has been in force since 1 May 2014. This Act enables pregnant women to give birth under a pseudonym. However, the woman's real identity must previously have been recorded by a counselling centre. The mother's identity is then transmitted to the Federal Office for Family and Civic Tasks (Bundesamt für Familie und zivilgesellschaftliche Aufgaben) and kept in confidence. The child's birth certificate does not record the pseudonym; the entries pertaining to the parents are left blank instead (Sect. 21(2a) PStG). The child generally has the right to have its mother's true identity revealed after its 16th birthday. However, a mother who gave her child away can file an objection with a counselling centre after the child's 15th birthday under Sect. 31(2) – (4) of the Act for the Prevention and Solving of Pregnancy Conflicts (Gesetz zur Vermeidung und Bewältigung von Schwangerschaft skonflikten / SchKG) to prevent her identity from being revealed.

CHANGES IN THE TRADITIONAL FAMILY

A. MOTHERS

1. Is maternity automatically established by the birth certificate?

Yes. The woman who gives birth to a child is recorded as the child's mother on the birth certificate and is the child's legal mother and guardian.

2. Does your jurisdiction recognise any kind of ‘anonymous childbirth’?

No.

3.– 4. If any kind of ‘anonymous childbirth’ is recognised, what rights does the natural mother have in respect of the child? / In the same situation, what are the child's rights in respect of the natural mother (and her other children)?

Not applicable under Irish Law.

B. FATHERS

5. Is paternity automatically established by way of a presumption? If yes, does the presumption only apply within marriage?

Yes to both questions.

Section 46(1) of the Status of Children Act 1987 provides that where a child is born within marriage, or within 10 months of the termination of a marriage, the woman's husband is presumed to be the child's father.

Birth registration must take place no later than three months after the birth of the child. Where the child's parents are married, only one of them needs to attend the Registrar's office to register the birth of the child and the consent of the absent spouse is not necessary in order to enter their name as the mother/ father on the register of births.

6. If paternity is not established by way of a presumption, how can it be established?

Section 46(3) of the Status of Children Act 1987 provides that legal paternity is presumed by naming a man on the birth certificate. Even if it is unclear from the legislation, it applies whether or not the mother is married.

The United States is comprised of 50 states within a federal constitutional system. Federal law takes precedence over state law, and all laws must comport with the US Constitution. The US Supreme Court is the highest court in the land, so its rulings bind all lower courts. However, the Supreme Court hears only cases raising a federal or constitutional question, so matters solely of state law are decided by each state's court system. State judicial systems consist of trial courts, intermediate appellate courts, and state supreme courts. The US Constitution imposes limits on the states ‘regulation of the family that have shaped the law governing parents and children in significant ways. But the laws governing parents and children are for the most part state laws that vary from one jurisdiction to another. Family law is heavily statutory, with court decisions interpreting and applying those statutes.

In responding to the survey, I have provided an overview of the approaches taken by the states, but the answers below do not attempt to capture all the specific variations that exist among the 50 states on many of these questions.

CHANGES IN THE TRADITIONAL FAMILY

A. MOTHERS

1. Is maternity automatically established by the birth certificate?

Yes generally. Birth certificates typically require identification of the mother.

However, in some jurisdictions, two men who have a child through surrogacy may obtain a pre-birth parentage order naming both of them as parents. These orders allow both fathers’ names to appear on the birth certificate, instead of a mother and a father, so no maternity would be established. In addition, in some surrogacy situations, the mother identified on the initial birth certificate does not remain the child's legal mother. In states that require the intended parents to obtain a post-birth parentage order, the birth certificate is amended to identify the intended mother or second father, rather than the surrogate, as the child's parent. Birth certificates are also amended when a child is adopted. Some jurisdictions have now changed their birth certificate forms to use nonheteronormative language, leaving space for identification of mother/father/ parent, rather than ‘mother’ and ‘father’ (see also Q. 18 and 27).

The Canadian federation was constituted in 1867, inspired by the American Constitution for its federalist system and by the British government for its parliamentary system and constitutional monarchy. It is now composed of ten provinces and three territories. The key characteristic of the Canadian system is the division of executive and legislative powers between the federal and provincial governments. All laws must respect the Canadian Constitution, including the Canadian Charter of Human Rights and Freedoms. Generally, laws regulating adults and children relationships (e.g. parentage, adoption, filiation) fall under the jurisdiction of the provinces or territories. So these laws vary from one jurisdiction to another. That justifies the overview approach we have chosen to present the rules governing these issues in Canada. The federal government is responsible for formation of marriage and divorce and it also has other general powers such as the criminal law power, the spending power, as well as residual powers over matters not assigned by the constitution to provinces and territories. Some matters could be of concurrent jurisdictions (e.g. surrogacy and artificial reproduction for the criminal law implications). There can be complex interactions at times between provincial/territorial and federal law (e.g. Reference re Assisted Human Reproduction Act, 2010 SCC 61). In the province of Quebec, the civil law system is applicable to relationships between persons and property, inspired by the French Napoleonic code, but the relationship between the state and persons has been governed by the common law of English origin. The common law applies in the rest of Canada, either in private or public matters.

CHANGES IN THE TRADITIONAL FAMILY

A. MOTHERS

1. Is maternity automatically established by the birth certificate?

In general, maternity is automatically established by the act of birth in Quebec (art. 523 CCQ), regardless of the circumstances of the child's birth. The adage mater semper certa est is of application in Quebec civil law. Hence, the woman who gives birth to the child is deemed to be the mother of the child. Nevertheless, a declaration from the mother to the registrar of civil status within 30 days of the birth of a child is still required. Failure to declare within that period of time is subject to a fine.

CHANGES IN THE TRADITIONAL FAMILY

A. MOTHERS

1. Is maternity automatically established by the birth certificate?

Maternity results from the mere fact of giving birth. It is established either by the birth certificate, or by a voluntary declaration of birth, or by paternity suit. The mention of the name of the mother on the birth certificate suffices to establish maternity even for a child born out of wedlock. If the name of the mother is not mentioned on the birth certificate, she is entitled to make a declaration of maternity to the registrar. The latter adds it to the birth certificate or establishes a separate certificate.

The declaration of birth is mandatory for each birth that occurs in Congolese national territory. The declaration is free of charge and must be made within 90 days following the birth by the father, the mother, the ascendants or relatives of the child, by people who were present at the birth, or by anyone mandated by the father or the mother of the child.

2. Does your jurisdiction recognise any kind of ‘anonymous childbirth’?

The basic principle in the Congolese system is that a child has the right to have and to recognise his/her father and mother and as far as possible to be brought up by them. It is forbidden to ignore one's child, whether born in or out of wedlock. The law punishes the abandonment of one's child and the major interest of the child prevails whenever it is about the establishment of or dispute about the child's filiation.

However, the law recognises the hypothesis of a newborn baby found on the national territory without any information about his/her father and mother. Whoever finds this child has to present him/her to the registrar of that area (arts. 120 – 22 of the Family Code). In such a case, as far as there is no declaration of maternity, this child will not have a biological mother.

1171. OBJECTIVE – In the final part of this book, the insights developed over the three preceding parts shall be used as a basis for policy recommendations. The policy recommendations address the question of how the current allocation of responsibility and liability among actors involved in the processing of personal data might be modified in order to increase legal certainty while maintaining at least an equivalent level of data protection.

1172. METHODOLOGY – The policy recommendations shall be developed in four stages. First, the issues identified in Part IV shall be summarised and presented in a structured manner (“typology of issues”). Second, an inventory will be made of ways in which these issues might be remedied (“typology of solutions”). Third, an evaluation will be made of the extent to which the proposed remedies are capable of addressing each of the identified issues. Finally, in the fourth phase, the approach adopted by the European legislature in the context of the GDPR will be compared with the outcome of the preceding evaluations. Where relevant, recommendations for possible further improvements will be made.

1173. SOURCES – The typology of issues will be developed by categorising the issues identified in Part IV and presenting them in a structured manner. The typology of solutions, on the other hand, will be developed on the basis of proposals put forward by various stakeholders, particular in the context of the review of Directive 95/46 and run-up to the GDPR. The evaluation of possible solutions shall, for the most part, be based on the typology of issues. Each proposal will be evaluated on the basis of whether, and if so, to what extent, it is capable of addressing each of the identified issues. If multiple solutions have been proposed, an internal comparison will be made. Where appropriate, insights from the field of law and economics will be applied to assist the internal comparison of the proposed solutions.

INTRODUCTION

This part of the book aims at exploring how social and emotional ties that have developed between adults and children may be recognised and protected by law within ‘non-traditional’ families, in three different contexts: (1) adoption; (2) step families; and (3) foster families.

In these different contexts, the relationship between adults and children is sometimes protected via an adoption (general adoption, step-child adoption or foster child adoption) with the objective being to establish a parenthood link between the adult and the child. The relationship can also be protected via measures aiming at protecting the socio-emotional link created between the child and the adult by conferring parental responsibilities on the adult, and/or via measures aiming at protecting the child financially, focusing on the intrafamily financial maintenance of the child, and/or by residence rights or contact rights between the child and the adult.

ADOPTION

Adoption is organised in almost all the reviewed jurisdictions but there are variations as to: (1) the available types of adoptions; (2) the requirements for adoption; and (3) the links maintained with the birth family.

Before reviewing and analysing the diversity of the national approaches, it is important to recall the obvious. On the one hand, adoption may be used as an end to create ex-nihilo a relationship between adults and children, where there is no pre-existing link between the adoptive child and the adoptive parent(s) and when the adoption of an orphan child is contemplated by (an) adult(s) as a way of becoming parent(s). In this case the adoption creates a legal relationship as well as a brand new social and emotional link. On the other hand, adoption may be used as a means of recognising and protecting a pre-existing social and emotional relationship, when the adoption of a child is contemplated, for example, by his/her step-parent(s) or foster parent(s). In this case, adoption only establishes a legal link, which consolidates an already existing socio-affective link.

ADOPTION SCHEMES

Amongst the reviewed jurisdictions, different types of adoption are available. Some offer adoption schemes whereby the adoptive child is fully integrated into the adoptive family. Others offer schemes whereby the adoptive child is not fully integrated and the initial parenthood link is maintained.

CHANGES IN THE TRADITIONAL FAMILY

A. MOTHERS

1. Is maternity automatically established by the birth certificate?

Since 2005, maternity is automatically established with respect to the child where the mother is named on the birth certificate.

The birth certificate shall be issued within the five days following delivery. It is a mandatory requirement. It consists in the registration of the child's birth by the civil status services.

2. Does your jurisdiction recognise any kind of ‘anonymous childbirth’?

Since 1993, but consistent with the immemorial practice of secret delivery by women in need, the mother has ‘officially’ been granted the right to give birth anonymously so as to prevent any legal connection between the child and herself.

As a consequence, the child's birth certificate will be issued with no indication of the identity of the woman who has given birth. However, she is invited to leave information about herself and possibly her identity. The information will be passed on to the National Council for Access to Personal Origins.

3. If any kind of ‘anonymous childbirth’ is recognised, what rights does the natural mother have in respect of the child?

The woman who gives birth anonymously is not the legal mother of the child. She has no rights properly speaking in respect of the child.

This woman is also informed that she can, at any time, either transfer complementary information to the National Council for Access to Personal Origins or breach the secret about her identity, allowing the child to have access to it. The breach of the secret is a decision that belongs to the natural mother exclusively. Indeed, such information cannot be passed on to the child, even after her death, unless she has expressly consented to it. The breach of secret has no legal consequences in itself, as it does not allow filiation to be established between the child and his/her natural mother.

Tables in this part of the book show how jurisdictions react to legal issues related to adult/child relationships and should, in principle, be understood in the following way:

— Horizontal lines correspond to different aspects of the legal issue the table concerns and vertical columns correspond to reviewed jurisdictions;

— Several columns may be grouped together to indicate that a larger group of jurisdictions share a globally similar approach to the legal issue at stake;

— Some jurisdictions are in italics, indicating that they are a specifi c type of jurisdiction;

— Inside the tables, the shading of the cells indicates two things:

It should be mentioned that some of the tables slightly depart from this model as it will appear from the context or the explanations surrounding them.

HISTORICAL CONTEXT

285. INTRODUCTION – Data protection emerged as a policy issue in a time of profound social and economic change. In the 1960s, as society continued its transition from an industrial to a post-industrial economy, many European nations introduced comprehensive social reforms. Administering these reforms would oblige governments to collect and process significant amounts of data about their citizens. Thanks to the advances in computing technology, governments would be able to process these data in an automated fashion. Initially, the use of computer applications had been confined to tasks related to research and planning. Towards the middle of the 1960s, however, computers started to make their appearance in daily administration, thereby increasing public awareness. This awareness in turn led to the realization that the application of information technology might alter the nature of the relationship between the individual and the state.

286. CATALYSTS – The public debate regarding the use of automated data processing techniques was fuelled by a number of catalysts. First, several governments were developing plans for centralized and computerized population data banks. These plans triggered public concerns regarding the ability of the state to infringe upon the privacy of its citizens, for example by creating “crib-to-grave dossiers”, or by developing “comprehensive systems of data surveillance”. Closely related to this issue were the proposals to introduce (or extend the use of) personal identification numbers for citizens. As these numbers facilitate the linkage of information across record-keeping systems, these proposals augmented the concern that governments might at some point start to use citizens’ information against them. A third cause for public alarm were the scheduled population censuses. Several censuses scheduled around 1970 helped bring privacy questions to the public attention, both because of the seemingly intrusive nature of the questions asked, as well as the use of automation in the census processes. Finally, an array of “alarmist” publications which emerged in the late 1960s and 1970s also served to draw public attention to the dangers computers might pose to the rights and freedoms of individuals.

287. LITTLE BROTHER – Of course, the use of information technology was not limited to the public sector alone. Private sector entities were likewise exploring the use of automated data processing to improve the efficiency of their daily operations. Many felt that individuals should also be protected from intrusive data processing carried out by private sector entities.

33. OUTLINE – Over the following chapters, the basic regulatory scheme of EU data protection law will be analysed with specific emphasis on the role of the controller and processor concepts. After describing its scope of application and basic protections, a detailed analysis will be made of how EU data protection law allocates responsibility and liability among actors involved in the processing of personal data. First, the key elements of the concepts of controller and processor shall be elaborated. Next, the relationship between controllers, co-controllers and processors will be discussed, followed by an analysis of the liability exposure of each actor. Finally, a number of specific issues relevant to the practical application of the controller and processor concepts shall be discussed.

34. METHODOLOGY – The analysis over the following chapters is based in first instance on the text of both the GDPR and Directive 95/46, their preparatory works, the case law of the CJEU, as well as the guidance issued by the Article 29 Working Party and European Data Protection Board. In certain places, however, the analysis is supplemented by insights offered by the preparatory works which accompanied national implementations of Directive 95/46. This approach is based on the assumption that national deliberations on the topic of how Directive 95/46 should be implemented into national law can yield additional insights as to how policymakers understood the provisions of Directive 95/46 at the time of its enactment. Finally, as regards the liability exposure of controllers and processors, reference shall also be made to the Principles of European Tort Law (PETL) as well as national Belgian tort law. The reason for doing so is that EU data protection law does not exhaustively harmonise the liability exposure of controllers and processors. By incorporating these supplemental sources into the analysis, however, it is possible to complement the analysis of the GDPR and Directive 95/46 with a number of important elements.

Recently, the relationships between adults and children were at the centre of attention due to an important report of the so-called Government Committee on the Reassessment of Parenthood. The Committee published its report Child and Parents in the 21st century in December 2016. Many adaptions to the current family law have been proposed, among which the introduction of parenthood for more than two persons and regulation of surrogacy. These proposals haven’ t resulted in new legislation yet as the new government requested more research on the consequences for taxes, nationality law, immigration law, succession law, maintenance obligations and the law on surnames.

In 1998, registered partnership was introduced in the Netherlands, allowing same-sex couples a way to formalise their relationship. This partnership has always also been open to heterosexual couples. The registered partnership was followed by the introduction of same-sex marriage in 2001. Nowadays, the legal differences between a registered partnership and marriage are negligible. For reasons of simplicity, use of the word marriage will therefore hereafter also cover registered partnership unless otherwise indicated in the text.

CHANGES IN THE TRADITIONAL FAMILY

A. MOTHERS

1. Is maternity automatically established by the birth certificate?

Declaration of a birth takes place by informing a civil registrar of the birth within three days following this event. The birth mother is authorised to declare the birth herself, but is not obliged to do so. By contrast, the spouse of the birth mother is obliged to declare the birth. If no spouse exists or if the spouse is unable to fulfil this duty, the obligation is transferred to the people that were present at the time of birth or, if this is also impossible, to people living in the house or in charge of the institution where the birth took place (art. 1:19e Civil Code (Burgerlijk Wetboek), henceforth referred to as BW).

Although registration of a birth is compulsory, it isn’ t the way in which maternity is established. In Dutch law the principle mater semper certa est applies; the birth mother of a child is always its legal mother, art. 1:198 BW. Maternity is therefore already established by birth, not by a certificate.

MATERIAL SCOPE

35. RATIONE MATERIAE – EU data protection law applies to “the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system”.

36. PERSONAL DATA – The material scope of EU data protection law is in first instance delineated by the concept of “personal data”. Personal data is understood as “any information relating to an identified or identifiable natural person ('data subject’)”.

37. “ANY INFORMATION” – The concept of personal data is extremely broad. Any type of information that pertains to an individual is considered personal data. For example, not only text, but also photos qualify as personal data. Even sound can qualify as personal data. The use of the expression “any information” in the definition of personal data reflects the aim of the EU legislature to assign a wide scope to that concept, which is not restricted to information that is sensitive or private, but potentially encompasses all kinds of information, not only objective but also subjective, in the form of opinions and assessments, provided that it ‘relates’ to the data subject.

38. “RELATING TO” – Information may be considered as “relating to” the data subject if the information, by reason of its content, purpose or effect, is linked to a particular person. Generally speaking, information can be considered to “relate” to an individual when it is about that individual.49 In some situations, the information in first instance concerns an object (e.g. a smartphone or other personal device), yet may be considered as indirectly relating to a particular individual. Data also “relates” to an individual if such information is used with the purpose to evaluate an individual (e.g. to determine and establish the performance of a specific person), to treat that person in a certain way or to otherwise influence the status or behaviour of an individual. Finally, information can also be considered to “relate” to an individual because its use is likely to have an effect on the individual's rights and interests, taking into account all the circumstances surrounding a particular case.

145. OUTLINE – The GDPR has introduced a number of important clarifications and changes when it comes to liability under EU data protection law. The main principles underlying the liability model have, however, essentially remained the same. To provide a comprehensive account of the liability exposure of controllers and processors, both the liability regime of Directive 95/46 and the liability regime GDPR shall be analysed.

146. RELEVANT SOURCES – The main sources used for the analysis are the texts of Directive 95/46 and the GDPR, their preparatory works and the guidance issued by the Article 29 Working Party. Where appropriate, however, reference shall also be made to the preparatory works of national implementations of Directive 95/46 (e.g. the Netherlands, Belgium), as a means to supplement the insights offered by the primary sources. Last but not least, the Principles of European Tort Law (PETL), as well as national tort law, are also considered for issues not addressed explicitly by Directive 95/46 or the GDPR.

DIRECTIVE 95/46: “STRICT” LIABILITY FOR CONTROLLERS

147. BASIC PRINCIPLE – Under Directive 95/46, a controller was, as a matter of principle, liable for any damages caused by the unlawful processing of personal data. Article 23(1) of Directive 95/46 stipulates that Member States must provide that the controller shall be liable towards data subjects for any damages suffered as a result of an unlawful processing operation. A controller could be exempted from liability, however, in whole or in part, if he proved that he was “not responsible for the event giving rise to the damage” (Article 23(2)). Directive 95/46 does not contain any provisions regarding the liability exposure of processors. While Article 16 stipulates that processors may only process the data in accordance with the instructions of the controller, the Directive does not explicitly allocate liability in case of a disregard for instructions.

CONTROLLER LIABILITY

A. The nature of controller obligations

148. “MEANS” OR “RESULT” – To properly understand the liability exposure of controllers, it is necessary to first understand the nature of controller obligations. Directive 95/46 imposes a variety of obligations upon controllers. In certain instances, the obligations specify a result to be achieved (e.g. “personal data must be collected for legitimate purposes and not further processed in a way incompatible with those purposes”). In other instances, the obligations are specified as an obligation to make reasonable eff orts to do something (“obligation of means”).

NATIONAL DATA PROTECTION LAWS BEFORE 1980

297. OUTLINE – This chapter will analyse three of the earliest data protection laws, namely the Hessian Data Protection Act of 7 October 1970, the Swedish Data Act of 11 May 1973 and the French Law on Informatics, Files and Liberties of 6 January 1978. The objective of this analysis is to ascertain how the early data protection laws allocated responsibility for complying with the norms they contained. For each instrument, the analysis will commence with a discussion of the origin and development of the instrument in question. Next, the scope ratione materiae of each instrument shall be discussed, followed by an overview of the basic protections it contains. Finally, a separate section shall be dedicated to an analysis of how each instrument allocates responsibility and liability.

THE HESSE DATA PROTECTION ACT (1970)

ORIGIN AND DEVELOPMENT

298. A TALE OF HOPE AND DISENCHANTMENT – Following the “Great Hessen plan” of 1965, the German Federal State (“Land”) of Hesse embarked upon a large-scale data collection exercise. The goal of this exercise was to assist the government in its development of long-term policies in economic and social matters, such as finance and social security. In 1969, the government enacted legislation which authorized the creation of an integrated data processing system for state and communal data. By using automated data processing techniques, policy makers would be able to “replace the most intuitive political decisions by rational conclusions based on knowledge of all the relevant data”. Towards the end of the ’60s, however, euphoria regarding the benefits of automation started to dwindle, as critical reflections regarding the consequences of such automation began to increase. Two concerns in particular permeated the debate: destabilization of the balance of powers (“Gewaltenteilung”) and the loss of privacy (“Verlust jeglicher Privatheit”).

299. UPSETTING THE BALANCE – A first area of concern related to the balance of power between the legislature and the executive. Some worried that the use of automated data processing techniques would unduly strengthen the power of the executive vis-à-vis the legislative branch (by providing the former with an “informational advantage” over the latter). A second set of concerns revolved around the relationship between the State and its citizens.