Recognition of children from the same-sex marriages

EUROPEAN COURT OF JUSTICE: Recognition of children from the same-sex marriages

A landmark ruling of the European Court of Justice (“ECJ”) of 14 December 2021 states that same-sex parents and their children should be recognized as a family in all members of the European Union (“EU”).

The content of the ruling states that if an EU country recognizes a parental relationship with a child, then each member state should do the same to guarantee the child the right to free movement.

CASE BACKGROUND

In this case, it is about Sara, a girl born in Spain in 2019.

What characterizes this case, in particular, is the fact that Sara has same-sex parents, i.e. the child has two mothers, Bulgarian citizen Kalina Ivanova and British citizen Jane Jones, who are registered in Spain as Sara’s mothers.

Spanish and British laws governing the matter of citizenship did not allow Sara to acquire either Spanish or British citizenship.

Namely, since none of the mothers is of Spanish origin, Sara could not acquire Spanish citizenship, while the British law from 1981 did not allow the transfer of Jane’s British citizenship to Sara because she was born in Gibraltar.

The mothers then turned to the only possible solution, and that is Bulgaria, refusing to disclose which of them is Sarah’s biological mother.

The case came before the EU’s highest court after Bulgarian authorities refused to give a newborn girl a birth certificate with the explanation that a child cannot have two mothers.

The child was in danger of being left without citizenship, personal documents, the opportunity to leave the country of residence, nor to exercise the right to education, health care, and social insurance.

OUTCOME OF THE DISPUTE

The mother of Bulgarian citizenship took the case to a court in Sofia, who then asked to consult with the Luxembourg-based ECJ.

The ECJ ruled that Spain had already established a child-parent relationship and that Bulgaria should issue a passport based on that.

The ruling states that member states of the EU must recognize the parent-child relationship in order to enable the child to exercise the right to free movement, while on the other hand, parents must have a document that allows them to travel with their children.

European laws guarantee the right of citizens of the member states to lead a normal family life, together with family members.

The court emphasized that the content of the ruling does not lead to the obligation for all EU member states to recognize same-sex marriages in their national laws, but the fact that a member state does not recognize same-sex marriages cannot derogate the child’s right to free movement.

It also adds that each EU member state must respect EU laws, with a special emphasis on freedom of movement, recognizing the civil status of a person established in another member state.

This ruling reaffirms that parenthood established in one EU member state cannot be rejected in another under the pretext of protecting the “national identity”.

The ECJ ruling will be implemented immediately, resulting in the granting of a Bulgarian passport to Sara.