should not make the acquisition of nationality by parentage conditional on
evidence of the biological truth if this evidence was not a condition for the
establishment of the parentage yet.17
17. Furthermore, if the parentage established abroad between a child born
by a surrogate mother with an intending parent, i.e. the person who commissions the pregnancy, is recognised by the state of nationality of this parent,
the child must have access to the nationality of the intending parent under
the same conditions as a child born from this parent.18 Therefore, it is not the
“blood” (sanguis) of a child that matters for the acquisition of nationality, but
the legal tie of parentage (filiatio). For that reason, it would be better to use
the expression ius filiationis (right by filiation) instead of ius sanguinis (right
by blood).
18. In order to determine whether rules concerning the avoidance of statelessness are applicable, the authorities often need detailed information, in
particular on the acquisition or non-acquisition of a certain foreign nationality.
Lack of information could, in some circumstances, result in the statelessness of
the child concerned. Of course, states have to observe data protection rules,
but they should not prevent the sharing of relevant data with another state
if the best interests of the child require it. Principle 6 of Recommendation
CM/Rec (2009)13 therefore calls on states to “co-operate closely on issues of
statelessness of children, including exchanging information on nationality legislation and public policies, as well as on nationality details in individual cases,
subject to applicable laws on personal data protection”.
2. Rules and practices in member states19
19. Most states provide that a child born on their territory who would otherwise be stateless automatically acquires the nationality of the country of
birth.20 This does not preclude verifying that this ground for the attribution
of nationality does apply in the case at hand.
17. See Principle 11 of Recommendation CM/Rec (2009)13 and its explanatory memorandum,
para. 28.
18. See Principle 11 of Recommendation CM/Rec (2009)13 and its Explanatory Memorandum,
para. 32; see also Labassee v. France, No. 65941/11, § 79 and Mennesson v. France, No. 65192/11,
§ 100, 26 June 2014.
19. This description is based on the answers to the questionnaire sent to the member states
in June 2024 and supplemented by data of the Globalcit database.
20. Andorra, Armenia, Belgium, Bosnia and Herzegovina, Bulgaria, Finland, France, Greece,
Ireland, Italy, Luxembourg, Portugal, Serbia, Slovak Republic, Spain and Türkiye.
Issues at stake: international standards and stocktaking of national situations ► Page 11