A case before the Court of Justice of the European Union which will be emblematic for the LGBTI community in Europe
LGBT Organization Deystvie represents in court a Bulgarian citizen who is married to another woman – a citizen of Gibraltar, United Kingdom. They live together in Barcelona and in December 2019, their baby girl was born in Barcelona. The child was issued a birth certificate by the authorities in Barcelona, where the two women are legally registered as her mothers. The child does not have a Spanish citizenship because neither of the two parents are Spanish citizens, nor can she receive citizenship from the United Kingdom.
The Bulgarian woman submitted a claim to Pancharevo Region, Sofia Municipality, in which she requested a Bulgarian birth certificate to be issued for the child. The Pancharevo Region explicitly requested evidence about which of the two women is the child’s biological mother. Att. D. Lyubenova – the legal representative, considered that the requested information was a gross interference in the private and family life of the child and the two women.
Sofia Municipality, Pancharevo Region refused to issue a birth certificate for the child, claiming that there was no information about the biological parentage of the child in relation to her biological mother. It also stated that it was inadmissible to register two mothers in the birth certificate, since same-sex marriages were not allowed in Bulgaria and a registration like this one would contradict public order. According to Att. Lyubenova: ‘The refusal by Sofia Municipality, Pancharevo Region contradicts current Bulgarian legislation and is a breach of Bulgarian legislation, the Charter of Fundamental Rights of the European Union, Directive 2004/38/EC, the European Court of Human Rights, the Private International Law Code, as well as a direct violation of the jurisprudence of the CJEU and the ECtHR. The refusal is also an act of direct discrimination under Article 4 of the Protection from Discrimination Act, because this type of information is not requested from any heterosexual couple requesting a birth certificate for their child’. The judge on the case – judge D. Kornezova – decided to refer the following question to the Court of Justice of the European Union for a preliminary ruling:
1. Must Article 20 TFEU and Article 21 TFEU and Articles 7, 24 and 45 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that the Bulgarian administrative authorities to which an application for a document certifying the birth of a child of Bulgarian nationality in another Member State of the EU was submitted, which had been certified by way of a Spanish birth certificate in which two persons of the female sex are registered as mothers without specifying whether one of them, and if so, which of them, is the child’s biological mother, are not permitted to refuse to issue a Bulgarian birth certificate on the grounds that the applicant refuses to state which of them is the child’s biological mother?
2. Must Article 4(2) TEU and Article 9 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that respect for the national identity and constitutional identity of the Member States of the European Union means that those Member States have a broad discretion as regards the rules for establishing parentage? Specifically:
- Must Art. 4(2) TEU be interpreted as allowing Member State to request information on the biological parentage of the child?
- Must Article 4(2) TEU in conjunction with Article 7 and Article 24(2) of the Charter be interpreted as meaning that it is essential to strike a balance of interests between, on the one hand, the national identity and constitutional identity of a Member State and, on the other hand, the best interests of the child, having regard to the fact that, at the present time, there is neither a consensus as regards values nor, in legal terms, a consensus about the possibility of registering as parents on a birth certificate persons of the same sex without providing further details of whether one of them, and if so, which of them, is the child’s biological parent? If this question is answered in the affirmative, how could that balance of interests be achieved in concrete terms?
3. Is the answer to Question 1 affected by the legal consequences of Brexit in that one of the mothers listed on the birth certificate issued in another Member State is a UK national whereas the other mother is a national of an EU Member State, having regard in particular to the fact that the refusal to issue a Bulgarian birth certificate for the child constitutes an obstacle to the issue of an identity document for the child by an EU Member State and, as a result, may impede the unlimited exercise of her rights as an EU citizen?
4. If the first question is answered in the affirmative: does EU law, in particular the principle of effectiveness, oblige the competent national authorities to derogate from the model birth certificate which forms part of the applicable national law?
What does this mean?
We are witnessing a historical moment of interpretation of European Union law and a historical court case which will reach the highest levels of jurisdiction in Europe. The ruling of the Court of Justice of the European Union will create mandatory case-law for Member States including Bulgaria. The development of this case could give legal recognition to parents of the same sex regarding their mutual children, which would solve the problem with the legal vacuum in Bulgaria, where we as LGBTI parents do not have any rights relating to our children. We at Deystvie believe that our work initiates change and drives our country towards change and that we all, in collaboration, can win the coveted victory in this case.
Contact Deystvie’s legal program at legal@deystvie.org
The Rainbow Shield: Enhancing the legal protection of LGBTI people in Bulgaria Project aims to improve the legal defense of LGBTI people in Bulgaria. The specific objectives of the project are:
• To expand the scope of legal practitioners prepared to deal with LGBTI cases and enhance their expertise in doing so;
• To provide possibilities for effective handling of discrimination and other LGBTI rights violations in a holistic way, including legal advice, litigation, psychological support and media preparation;
• To raise awareness among the LGBTI community about possibilities for legal protection in cases of discrimination and other violations of their rights and increase cases of reporting;
• To test and disseminate best practices of civil organisations of enhancing legal protection of LGBTI people around Europe.
The project is financed by the Rights, Equality, Citizenship (2014-2020) Programme of the European Union.