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The answer to the question: "Who is the mother? Who is the father?" is defined by the national law on maternity and paternity.
1. How is parentage established under Belgian law?
Inclusion of the mother's name on the birth certificate is enough to identify the child's mother.
If the name of the mother is not mentioned on the birth certificate or, in the absence of a birth certificate, the mother can still acknowledge her child.
Maternity can also be established by a court judgement.
The following regulations have been applicable since 1 July 2007.
If the child was born within a marriage, the mother's spouse is the father.
This rule does not apply if the child was born:
- more than 300 days after the legal confirmation of an agreement between the parties to reside separately, or after the legal authorization to reside separately.
- more than 300 days after the submission date of the petition for divorce by mutual consent.
- more than 300 days after a judgement by a Justice of the Peace authorising the parents to reside separately and less than 180 days after the date on which this decision expired or the parents reunited.
- more than 300 days after the date on which the spouses registered at different addresses according to the population register, the aliens register or a waiting list, as long as they have not subsequently been re-registered at the same address.
These exceptions do not apply if the spouses made a common statement at the time of birth.
If the mother remarries within 300 days of one of the three aforementioned situations and if the child is born during that marriage, the mother's "new" husband will be identified as the legal father of the child.
In the case of an extramarital child, paternity can also be acknowledged voluntarily.
Paternity can also be established through legal channels.
2. When is an acknowledgement of parentage required?
If a child's parentage was not established in accordance with Belgian law at the time of birth, the child may be acknowledged at a later date by the biological father and/or biological mother.
Belgian law applies if a Belgian (mother/father) is acknowledging a child's parentage.
In accordance with Belgian law, a child can be acknowledged before (prenatal acknowledgement) or after birth (postnatal acknowledgement). It is even possible to acknowledge a child's parentage if the child is already an adult (18 years old).
In accordance with Belgian law, a child's parentage can be acknowledged in the birth certificate, a separate registration certificate or a deed drawn up by a solicitor. However, a child's parentage cannot be acknowledged in a will.
The certificate acknowledging a child's parentage can be drawn up in Belgium, when at least one of the following conditions is fulfilled:
- The person making the acknowledgement is domiciled in Belgium at the time of the acknowledgement.
- Belgium is the habitual residence of the person making the acknowledgement at the time of the acknowledgement.
- The person making the acknowledgement is Belgian at the time of the acknowledgement.
- The child was born in Belgium.
- Belgium is the child's habitual residence at the time of the acknowledgement.
In some cases, a Belgian consulate abroad is authorised to draw up an acknowledgement of parentage for a child who is acknowledged by a person habitually resident abroad.
2.1. Acknowledgement by the mother
As a Belgian mother, you only need to acknowledge your child if a birth certificate has not been issued or if your name does not appear on the birth certificate. Neither the father nor the child are required to give their consent for the acknowledgement of parentage. Acknowledgement by the mother is extremely rare.
2.2. Acknowledgement by the father
Acknowledgement is only possible if paternity remains to be established or it is denied/contested.
Since 1 July 2007, the following regulations have applied to acknowledgement.
A child's parentage can only be acknowledged if the necessary consents are given. If the child is under 12 years of age, the mother must give her consent. If the child is between 12 and 18 years old, both the mother and child must give their consent. If the child is 18 years of age or over, consent is only required from the child.
If the Belgian father is married to a woman other than the child’s mother, his spouse must be informed of the acknowledgement of this child by either registered post or bailiff.
Current Belgian legislation does not address the issue of surrogacy or of children born via surrogacy.
In light of this legislative vacuum, the Belgian federal administration has no choice other than to ignore any legal consequences of foreign documents created in this context (e.g. birth certificates or judgements). This position is adopted even if the local legal procedure has been followed meticulously abroad and the documents have been properly legalised or apostilled for use in Belgium. What results in legal implications abroad is not automatically recognised by the Belgian internal Rule of Law.
If a Belgian citizen decides to pursue surrogacy abroad, the Belgian federal administration will refuse to legally recognise this person as the parent, even if this is allowed by the local law in question.
Taking into account everyone's competences and the reasons listed above:
- No Belgian passport, including a provisional passport, will be issued by the FPS Foreign Affairs to a child born via surrogacy;
- No laissez-passer or visa will be issued by the Immigration Office to a child born via surrogacy.
In the absence of being able to obtain a travel document allowing the child born via surrogacy to travel, the intended parent(s) will have to address the competent Belgian court.
Further information can also be obtained by contacting:
- The Federal Public Service Foreign Affairs, Registry Service
- The Belgian consulate in your place of residence abroad
7. What about a foreign certificate which establishes parentage?
A foreign birth certificate which establishes the presumption of paternity or a foreign acknowledgement of parentage may potentially be recognised in Belgium. If it fulfils certain conditions, it can be transcribed into the civil status registers of a Belgian municipality. This makes it easy to obtain copies or extracts in Belgium.