The Regulation of Motherhood in the Polish Family and Guardianship Code

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The regulation introduced to the Polish Family and Guardianship Code by the law of 6 November 2008, which entered into force on 13 June 2009 (the newly added section “Motherhood” encompassing Articles 619 – 6116; Journal of Laws of 2008 No 220 item 1431), is entirely devoted to the hitherto ignored issue of maternal descent. The reform is primarily a somewhat preventive reaction to the expansion of assisted reproductive technology (ART), which enables a woman who is either unwilling or incapable of carrying and giving birth to a child to provide her egg for fertilisation, which is then planted into another woman’s womb. One of the major social effects of the new technique is the possible split of the natural motherly “functions”, hitherto vested in one person, between the genetic mother, who provides the egg for insemination, and the biological, or surrogate mother, who carries and bears the baby.

The reform is primarily a somewhat preventive reaction to the expansion of assisted reproductive technology (ART), which enables a woman who is either unwilling or incapable of carrying and giving birth to a child to provide her egg for fertilisation, which is then planted into another woman’s womb.

This split has made it necessary to explicitly attribute legal motherhood to just one of these women, as the Roman maxim mater semper certa est loses much of its relevance. Polish legislators resolved the problem unconditionally in favour of the biological mother, by defining the mother, in Article 619 of the Code, as the woman who gave birth to the child.

The above solution complies with the European Conventionon the LegalStatusofChildrenBorn out of Wedlock of 1975, ratified by all the member states of the Council of Europe. Article 2 of this convention stipulates that the “maternal affiliation of every child born out of wedlock shall be based solely on the fact of the birth of the child.” Moreover, it sanctions long-standing judicial practice and social beliefs on this matter.

The reform discussed has another practical impact, as it clearly excludes the binding force of surrogacy contracts, where one woman – the gamete donor – has “her” child carried and delivered by another, yet the former still retains the legal status of the child’s mother, a prohibition adopted earlier, for example by the French Civil Code (Article 311-19).

The new law also regulates certain essential procedural questions pertaining to establishing (Article 6110) and disproving maternity (Article 6112). Even though the very possibility of bringing actions in such matters has never been questioned, the scarce judicial practice failed to define unanimous and clear procedural rules in certain aspects, especially as to the deadlines for a claim’s admissibility, and the defendants to be sued in such proceedings.

The new regulation allows for an action to establish maternity whenever the parents of a child remain unknown, or where the maternity of the woman named in the birth record as the child’s mother has been disproven. In this case, a child who seeks to legally establish his or her maternal descent can sue the woman he or she believes to be the mother, while the latter can bring her action against the child, which she may do until the child reaches maturity.

By virtue of the new provisions, an action to disprove maternity is now possible if the woman named in the record of birth as the mother did not actually give birth to the child. The person entitled to bring such an action is, first of all, the child, who should sue the woman wrongly named in the record.  The actual mother should also sue this woman, while a man whose paternity was established based on the maternity of such a woman should bring his action both against her and the child. The woman in question should, in turn, sue only the child. The claim discussed is admissible for a mother or woman wrongly believed to have delivered the child within six months from the preparation of the birth record. A man who questions his paternity is limited by a deadline of six months from the date on which he learnt that the woman named in the record is not the actual mother, but only until the child reaches maturity. The child, in turn, may bring the action within three years from reaching maturity.

Apart from the people listed above, and – in particular cases – a public prosecutor (Article 6116) – no-one may interfere with the child’s civil status by seeking to establish or disprove his or her maternal descent. An action to disprove maternity is not possible at all after the child’s death (Article 6115), and only the prosecutor may demand the establishment of a deceased child’s maternal descent.

The reform discussed does not revolutionise the Polish family law, as it was principally meant to constitute a preventive measure against possible controversies regarding ART and surrogacy contracts, before these could actually become part of social life and an object of public debate, which does not yet seem to be happening, four years after the introduction of the reform. Therefore, the law in question sanctions the already well-established judicial solutions removing its ambiguities, thus following the example of many other European countries.

Posted on by Jakub Petkiewicz in General Issues

About the author

Jakub Petkiewicz
Jakub Petkiewicz

Author graduated with a Master of Laws degree from the Maria Curie-Skłodowska University in Lublin and holds an MA in Applied Linguistics (English and French) from this university. He also studied European Law at Université Nancy 2. He is currently a trainee at the National School of Judiciary and Public Prosecution in Cracow.