Te Advocate General of the Court of Justice of the European Union, Juliane Kokott, published her opinion on the case of baby Sara which is being pursued with Deystvie’s legal assistance.
The main conclusions of the Advocate General's opinion:
The right to free movement within the Union includes the right to lead a normal family life both in the host Member State and in the Member State of origin.
V.M.A. and her wife have duly acquired the status of parents of the child under Spanish law. Failure to recognize the kinship between the two women and the child would create obstacles to their family life in Bulgaria if they decide to return;
Bulgaria MAY NOT refuse to recognize the parentage of the child from her two mothers for the purposes of free movement in the EU;
Bulgaria must issue an identity document or a travel document in which V.M.A. and her wife are listed as parents.
Following the release of the opinion, baby Sara’s parents said:
“We are extremely excited by the Advocate General’s decision and grateful for the support of our relatives, friends and the community. We hope that the judgment in the case will be a turning point that will help other families like ours. We are very happy about the opportunity to travel together as a family and for our daughter to finally see her relatives in Bulgaria and the UK. Special thanks to Denitsa Lyubenova and Veneta Limberova from Deystvie for their tireless work and dedication, as well as to ILGA-Europe for their invaluable support in our case.”
Comment by Att. Denitsa Lyubenova – legal representative of the family and part of the Legal Program of LGBTI Organization Deystvie:
“We are still awaiting the ruling of the Court of Justice of the European Union, but we believe that the Advocate General’s opinion is a step forward recognizing same-sex families across Europe. Law changes slowly, with small steps, but with a lot of perseverance. I think that over the years, we have proved that we have this quality in the Legal Program of Deystvie. A ruling in the direction set by the Advocate General will bind Bulgaria to establish the family relationship between the child Sara and her two mothers. Maybe it all starts now.”
Comment by Veneta Limberova - Chairperson of LGBTI Organization Deystvie:
Since 2012, the work of Deystvie has been aimed at achieving full legal recognition and social inclusion of LGBTI people in a society in which they feel safe and acknowledged. Since 2015, the main focus in this regard for us are the topics related to recognition of the rights of same-sex partners, their families and children. The Advocate General’s opinion in the case of baby Sara establishes the minimum obligation to recognize the child’s identity as it is by entering both her parents in her official documents. Next, the decision is a step for us towards achieving equality in Bulgaria for LGBTI people in general, although it only relates to the exercise of the right to free movement in the EU. At the same time, we realize that we still have a long way to go so that our national legislation provides equal rights to all LGBTI people in Bulgaria, such as the right to conclude marriage or registered partnership with our partner, as well as to be registered as parents of the children born in the partnership and raised by us in Bulgaria.”
Baby Sara’s story
Sara was born on 9 December 2019 in Spain in the family of a Bulgarian woman and a British woman born in Gibraltar. At birth, the child received a birth certificate listing her two mothers, but without specifying who the child’s biological mother was (an example of good practice of Spain that takes into account the child’s relationship with both parents). Under current Spanish law, the child could not acquire Spanish citizenship because none of her mothers is a Spanish citizen. The girl was also denied British citizenship because, under current British law, her mother from Gibraltar could not convey citizenship.
On 29 January 2020, the Bulgarian mother submitted documents for the issuance of a birth certificate for Sara in Bulgaria, so that she could acquire Bulgarian citizenship. Sofia Municipality instructed the Bulgarian mother to provide evidence containing information about the child’s parentage in relation to her biological mother. After V.M.A. refused to provide such information, on March 5, Sofia Municipality, Pancharevo District refused to issue a birth certificate for baby Sara, citing the fact that two mothers cannot have a biological child and that issuing such a birth certificate would be contrary to public order, as Bulgaria does not recognizes same-sex marriages concluded abroad.
Sofia Municipality’s decision was appealed before Administrative Court Sofia-City. 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.
The hearing took place on 9 February 2021 before a Grand Chamber of the Court of Justice of the European Union. Observations were presented by Spain, Italy, Poland, Hungary, Germany, the Netherlands and the European Commission. Bulgaria was represented by the Ministry of Foreign Affairs via videoconference. The hearing lasted over 4 hours, during which most questions were addressed to V.A.’s counsel, Att. Denitsa Lyubenova, and her family, as well as to the Kingdom of Spain. The main issues discussed during the hearing were:
The right to private and family life of the couple and their child, as guaranteed by EU law;
The right to free movement of the family within the European Union, as guaranteed by Articles 20 and 21 TFEU and the provisions of Directive 2004/38;
Recognition by the Member State of Bulgaria of the biological or legal kinship which has been lawfully established by the host Member State in accordance with its applicable national regulations;
The child’s rights, as guaranteed by the EU Charter of Fundamental Rights and the UN Convention on the Rights of the Child;
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.
Legal representation in the case is provided by Att. Denitsa Lyubenova and the Legal Program of LGBTI Organization Deystvie. Deystvie is a human rights organization dedicated to contributing to change in the lives of LGBTI people in Bulgaria through legislative change and regulation of the rights of same-sex partners and their families, incrimination of hate crimes and a legally regulated procedure for gender reassignment.
The Deystvie team expresses special thanks to: Assoc. Prof. Velina Todorova, ILGA-Europe, Accept Association - Romania, as well to the German law firm Freshfields and the European Association NELFA.