Case before the Court of Justice of the European Union
Court of Justice of the European Union: Bulgaria is obliged to issue identity documents for children with same-sex parents
On the 14th December 2021, the Court of Justice of the European Union (CJEU) issued a ruling on a request for a preliminary ruling from Administrative Court Sofia City (ACSC). According to the CJEU judgment, once a child’s parentage is established in a Member State, it should be recognized throughout the Union, regardless of the parents’ sex or of national law.
The judgment came as a result of the lawsuit filed by Att. Denitsa Lyubenova due to the refusal of Sofia Municipality, Pancharevo District to issue a birth certificate for the two-year-old Sara. Sara, who lives in Spain with her two mothers, one of whom is Bulgarian, is still undocumented. ACSC will have to implement the judgment of the Court of Justice of the European Union, obliging the Bulgarian administration to issue identity documents for the child so that Sara can exercise her right to move freely in the European Union as a European citizen.
Att. Denitsa Lyubenova, legal representative of the applicants and Director of the Legal Program of LGBTI Organization Deystvie, said: “The judgment of the Court of Justice of the European Union is fully in line with the principles on which the European Union is built and also with the case-law of the Court of Justice so far, namely that all European citizens should be treated equally. Bulgaria is obliged to recognize Sara’s legal relationship with her two mothers. Bulgaria cannot rely on its national and constitutional identity and public order to derogate from the fundamental rights of EU citizens. According to the Court of Justice, the child Sara is the heir of her Bulgarian and British mother, and the two mothers have the right to inherit each other.”
Veneta Limberova is the Chair of LGBTI Organization Deystvie, which provides free legal aid to Sara's parents. According to her, the judgment is significant for the whole European community, but also for Bulgaria, as the institutions will now be obliged to recognize and not deny rights of children with same-sex parents.
Baby Sara’s mothers shared: “We are excited about the judgment and can’t wait to get Sara’s documents and finally be able to see our families after more than two years. It is important for us to be a family not only in Spain, but in every country in Europe, and this can finally happen. This is a long-awaited step forward for us, but also a huge step for all LGBTI families in Bulgaria and Europe. We are very grateful for the support provided by ILGA-Europe, NELFA, LGBTI Organization Deystvie and especially Att. Denitsa Lyubenova and Veneta Limberova for fighting for our family and countless other families in our situation in Europe.”
LGBTI Organization Deystvie, through the Legal Program, conducts strategic cases for the recognition of marriages concluded abroad, birth certificates issued by other countries, discrimination, hate incidents and crimes against LGBTI people. The free legal program, which is funded through European programmes, the Active Citizens Fund, the Bulgarian Fund for Women and the Equal Rights Fund, provided more than 120 legal consultations and filed more than 30 lawsuits in national courts in 2021. Through the Legal Program of LGBTI Deystvie, three lawsuits have been filed so far before the European Court of Human Rights, in which judgments are expected.
It is important to note:
As a result of Sofia Municipality’s refusal to issue a birth certificate for baby Sara, Sofia Municipality left a child at risk of statelessness only on the basis of her parents’ sexual orientation;
Sofia Municipality’s request to the applicant V.M.A. to provide information about the biological parent of baby Sara IS NOT based on any applicable law or regulation in Bulgaria.
Sofia Municipality’s request for information concerning biological parentage of the child to be provided is discriminatory and aims to discriminate against the child on the basis of her parents’ sexual orientation.
At the moment, baby Sara has no personal documents and cannot leave her country of birth (Spain) to visit her relatives in Bulgaria and Great Britain. As a result, at the time S.J.K.A. reaches the necessary age to start school and/or kindergarten, she will not be able to enter these institutions in Spain (which is the country of her habitual residence) because she will not have citizenship.
The refusal to issue a Bulgarian birth certificate including both parents of the child creates significant risks of affecting legal certainty and identity in EU Member States.
Facts on the procedure
On 29 January 2020, V.A. submitted an application to Sofia Municipality, Pancharevo District, to draw up a Bulgarian birth certificate for her own child S.J.K.A.
On 7 February 2020, by a letter to V.M.A., she was given a 7-day period to provide evidence containing information about the child’s parentage in relation to her biological mother.
On the same day, V.M.A. filed an application stating that she could not and was not obliged to prove such information under any law and by-law in force in the Republic of Bulgaria.
On 5 March 2020, Sofia Municipality, Pancharevo District issued a refusal to issue a Bulgarian birth certificate reflecting the birth of S.J.K.A. and including both her parents - V.M.A. and C.J.K., objectified in a letter.
On 03.04.2020, V.M.A., through her attorney and her mother - S.V.S.-A., filed an appeal with Administrative Court Sofia-City against the refusal of Sofia Municipality, Pancharevo District, as objectified in a letter, for a Bulgarian birth certificate to be issued to the child S.J.K.A. in accordance with the issued Spanish birth certificate.
On 2 October 2020, Administrative Court Sofia-City decided to stay the case before the ACSC and to send a request for a preliminary ruling to the Court of Justice of the European Union.
Main points of reference why baby Sara should be issued a birth certificate by the Bulgarian authorities
The issue of Bulgaria’s national and constitutional identity
By referring the case for a preliminary ruling to the CJEU, the ACSC raised two questions of critical importance. The first question raised by the national court before the CJEU is whether the Bulgarian authorities may refuse to issue a birth certificate on the sole ground that the applicant refused to provide information as to who the biological mother was. The second question before the CJEU concerns the balance between the national and constitutional identity of the Member States (Article 4(2) TEU), on the one hand, and the right to private and family life and the best interests of the child (Articles 7 and 24(2) of the Charter of Fundamental Rights of the European Union), on the other hand.
Undoubtedly, the rules of civil status are within the competence of the Member States and the EU is obliged to respect that national identity. However, the notion of “national identity” cannot be used in an uncontrolled manner by Member States and cannot serve as grounds for acts of discrimination and violation of the rights of a certain group of the population – LGBTI people. On the contrary, in order to invoke their national and constitutional identity, Member States must demonstrate that there is a sufficiently serious threat to justify the restriction of fundamental rights for the Union. This is clearly not the case here. In no way can the issuance of a birth certificate to a baby including both parents, who happen to be of the same sex, be accepted as a serious threat to the Bulgarian State.
Denial of European citizenship
The refusal of the competent Bulgarian authorities to issue a Bulgarian birth certificate on the basis of the Spanish birth certificate which includes two persons of the same sex deprives Sara of both Bulgarian and European citizenship, thus restricting the right to free movement of a citizen of the Union due to restrictions in the legislation of one of her parents’ the country of origin, which constitutes a violation of Articles 20 and 21 TFEU. By refusing to issue a Bulgarian birth certificate and refusing to recognize her parentage from her mother which legitimately appears in the Spanish birth certificate, the Bulgarian authorities violate the right to free movement of a European citizen, violate the right to private and family life and the right to start a family on the grounds of sexual orientation, which violates the fundamental principles on which the European Union is built.
The right to start a family and to protection of private and family life
V.M.A. аnd C.J.K have a lawful marriage concluded in the British overseas territory of Gibraltar (concluded while the UK was part of the EU in 2016).
Under Spanish law, two women who have a lawful civil marriage during which a child is born are considered to be joint parents of that child (Article 44(5) of the Civil Registration Act 2011 – Artículo 44, para. 5 desde Ley Registro Civil de 2011 – También constará como filiación matrimonial cuando la madre estuviere casada, y no separada legalmente o de hecho, con otra mujer y esta última manifestara que consiente en que se determine a su favor la filiación respecto al hijo nacido de su cónyuge). Therefore, under Spanish law, both women are considered mothers of the child and have equal rights.
Consequently, the non-recognition of the lawfully contracted marriage of V.M.A. and C.J.K. and the child born during it, whose parentage was established by the authorities in Spain with the issued birth certificate including two persons of the same sex, violates their right to private and family life guaranteed by Articles 7 and 9 of the Charter of Fundamental Rights of the EU. It is important to emphasize here that family relationships established in another Member State are guaranteed by both the ECHR and the case law of the ECtHR (Orlandi and Others v. Italy, Applications nos. 26431/12; 26742/12; 44057/12 and 60088/12, judgment of 14 December 2017; Pažić v. Croatia (Application no. 68453/13, judgment of 23 May 2016).
Unequal treatment and discrimination based on sexual orientation
It is important to note that the Bulgarian administrative authorities do not require proof of biological parents in identical cases when Bulgarian citizens or a Bulgarian and another citizen of the opposite sex require the issuance of a Bulgarian birth certificate by the Bulgarian administrative authorities on the basis of a birth certificate issued by another Member State. Proof of biological parentage is not required from a parent, either in the case of birth abroad or in the case of adoption abroad. When the request for issuance of a Bulgarian birth certificate is submitted by two parents of opposite sexes, no additional restrictions are placed thereon. Accordingly, the refusal of the Bulgarian administrative authorities in the specific case should be considered as a refusal of equal treatment of persons based on their differentiation in view of their sexual orientation, and it accordingly constitutes a violation of Article 20 in conjunction with Article 21(1) CFREU.
The child’s best interest
In the specific case, the child's best interests should also be considered. The provision of Article 24 CFREU is directly inspired by the Convention on the Rights of the Child, including on the legal force of fundamental principles of the Convention, such as “the child's best interests”. The child’s best interests require that the child’s rights and interests be a primary consideration in matters concerning them.
The disputed refusal, as well as the requirement by the Bulgarian authorities to reveal the biological parent of the child S.J.K.A. without such an obligation to be imposed by any provision of Bulgarian law, brings unequal treatment both as regards the parents’ sexual orientation and as regards the marital status of these same parents, and the result of this unequal treatment is the unequal treatment of a de jure EU citizen, namely the child S.J.K.A.
As a result of the refusal of the competent Bulgarian authorities to issue a Bulgarian birth certificate based on the Spanish birth certificate, which includes two persons of the same sex, the child S. - a European citizen, remains without the right to exercise her European citizenship.
As a result, at the time S.J.K.A. reaches the necessary age to start school and/or kindergarten, she will not be able to enter these institutions in Spain (which is the country of her habitual residence) because she will not have citizenship.
In addition, the refusal to issue a Bulgarian birth certificate including both parents of the child creates significant risks of affecting legal certainty and a different identity in EU Member States. The latter accordingly affects or would affect in the future the rights of the child S. regarding her family-law and inheritance relations with her parents. Respectively, this situation will give rise to the possibility of challenging various existing and future consequences which the law of other Member States considers to be legally established or legally possible. For example, it is in the child’s best interest to have both parents recorded in their birth certificate, to be able to inherit both parents, to be able to live with their parents and to maintain a personal relationship with them, to receive allowance from both parents. It is also important for the child’s best interests that these rights be available in all countries with which they have a legal relationship, i.e. that there is continuity between states in this regard (Convention on the Rights of the Child; Judgment of 2 October 2003, Garcia Avello, С-148/02, EU:C:2003:539). The same is set as a requirement in the 2015 annual report of the UN High Commissioner for Human Rights (Recommendation A/HRC/31/29).
It is in the child’s best interests not to be left stateless because of the wide discretion that Member States would have regarding the determination of rules for establishment of parentage.