Rainbow families have the right to move and reside freely, EU court reiterates

The Court of Justice of the EU has stated that birth certificates issued in an EU country must be recognised across the EU, and that EU countries should protect the freedom of movement of rainbow families.

On June 24, the Court of Justice of the European Union (CJEU) issued a reasoned order establishing that when an EU country has recognised two persons of the same sex as parents of a child, then the EU country of which that child is a national, should issue identity documents to that child with both parent on them, and all EU countries should protect the right to freedom of movement of the child and their family. This is a confirmation of a previous landmark judgment, that of Baby Sara.

Poland has been told that it must now provide the child known as Baby Sofia, born in 2018 to Irish and Polish mothers, with identity documents and guarantee her and her parents the right to move and reside freely in the country.

The case arose when Poland denied citizenship to baby Sofia, daughter of two mothers, Kashka, from Poland, and Sinéad, from Ireland. In 2018, Sofia was born in Spain, where the couple had gone to receive IVF treatment. Spanish authorities issued a birth certificate with the name of the two mothers but not identity documents, as children of foreigners are not automatically entitled to citizenship in the country.

At that time, in Ireland, two women could not be recognised as parents on a birth certificate. In the eyes of Irish law, the mother was the woman who gave birth to the child. As Kasha, the biological mother was not Irish, Sofia couldn’t apply for citizenship in Ireland either.

In Poland, where rainbow families are still not recognised, authorities refused to recognise Sofia’s birth certificate, depriving her of access to citizenship and identity documents. For over two years Sofia remained without any documentary proof of any nationality, and therefore at risk of statelessness. The family was could not leave Spain, as Baby Sofia couldn’t travel without documents. Her mothers had to move house every couple of months, as they were running out of savings.

Now, the CJEU has stated that an EU country is obliged to provide identity documents to a child when the child, being a national of the country, has a birth certificate issued in another member state that designates two persons of the same-sex as their parents. All EU countries must respect the documents that allow the child and their family to exercise their right to move and reside freely with the territory of the EU. These are protections granted in Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU) and Articles 7 and 24 of the Charter of Fundamental Rights of the EU, among others.

With this reasoned order, the CJEU has confirmed the landmark judgment delivered in the Baby Sara case last year, which arose when a same-sex couple were refused a birth certificate in Bulgaria for their daughter, also born in Spain. Poland must now provide Baby Sofia with identity documents and guarantee her and her mothers the right to move and reside freely in the country.

In the meantime, Spain issued identity documents to Sofia in March 2019. Spanish law foresees a safeguard measure that allows children born in its territory who would otherwise be stateless to acquire Spanish nationality at birth. The couple also applied for Irish citizenship for Sofia through naturalisation over two years ago, but they have not received any feedback since March 2020. The Children and Families Relationship Act, which allowed both women in a same-sex couple to be automatically recognised on their child’s birth certificate, was enforced in Ireland in May 2020.

Welcoming the order, but concerned about its implementation, the lawyer for Baby Sofia’s parents, Anna Mazurczak said: “We are, of course, happy that the Court has applied the reasoning from the Bulgarian case in a Polish case. However, the Court has not been as straightforward as we had hoped. We wanted to make sure that Poland had the obligation not only to issue an ID but also to indicate the first names of same-sex parents on it.

“Through the CJEU’s reasoned order, we hoped to convince the Supreme Administrative Court of Poland that issuing an ID with one mother’s name is not enough. The CJEU has already held that different last names contained in documents issued by different member states can cause an obstacle to the right of freedom of movement. In my opinion, the different parent names on the ID card can violate freedom of movement even more.”

Recently, a draft amendment to the Family Code was submitted for public consultation in Poland, where marriage equality, same-sex registered partnerships and co-parent recognition are not recognised. While it could improve the situation of children of same-sex parents born abroad by recognising their birth certificates, it also presents a discriminatory approach towards rainbow families. There is no clear timeline for the development and implementation of these amendments.

According Arpi Avetisyan, Head of Litigation at ILGA-Europe: “The CJEU’s reasoned order is a welcome confirmation of the rights of children in rainbow families. The Polish and Bulgarian cases that have reached the CJEU, Baby Sofia and Baby Sara, are not isolated. They show the tip of the iceberg of the numerous examples of the hardships experienced by rainbow families in the EU.

“We hope that the upcoming European Commission’s legislation on parenthood recognition, by incorporating the CJEU rulings, will provide a framework for removing obstacles to freedom of movement for rainbow families. What is crucial at the present, however, is that Poland and Bulgaria put in place necessary procedures for implementing CJEU’s judgment and reasoned order as soon as possible.”

Meanwhile, in Bulgaria, the ruling in Baby Sara’s case has not yet been implemented. While on 16 May, Sofia’s Administrative Court, which had asked the CJEU for clarification in this case, ruled that Capital Municipality, Pancharevo District must issue a birth certificate with both of Sara’s mothers on it, the decision was appealed by the Municipality on 13 June. This means that to date, Sara is still without documents and at risk of statelessness.

See also

News

Sexual orientation is not a reason to terminate a contract with a self-employed worker, says Advocate General of the CJEU

Today, the Advocate General of the CJEU has issued an opinion in the case of J.K. vs the Polish public broadcaster company TP, stating that discrimination based on sexual orientation in employment is not acceptable under EU law.
read more
Blog

Update: The Rights of Rainbow Families in the EU

The Court of Justice of the EU has ruled in two occasions over recent months that EU countries must protect the freedom of movement of rainbow families. This is a right all EU citizens should enjoy, LGBTI people too. In today’s blog, we bring you the state of LGBTI people’s family rights in different EU countries.
read more
News

Hungary to be Brought Before Top EU Court For its Ban on LGBTI Content

The European Commission has referred Hungary to the CJEU over discriminatory amendments adopted in June 2021, which ban the “portrayal and the promotion of gender […]
read more
News

Complaint Filed with EC Against Lack of Free Movement for Same-sex Couples in hungary

ILGA-Europe, alongside a Hungarian activist organisation, have filed a complaint against Hungary because of its refusal to implement the 2018 Coman judgement, which recognises that […]
read more
News

Polish public broadcaster TP in EU Court for Discrimination Against Self-employed LGBTI Person

Today, the case of J.K. vs the Polish public broadcasting company TP, in which the applicant is seeking compensation for the discontinuation of his freelance […]
read more
News

Bulgarian Court Rules Baby Sara Must Be Issued Birth Certificate

A Bulgarian court has ordered city hall authorities in the capital city of Sofia to issue a birth certificate to the baby born to a […]
read more
Case Law

A.B. and K.V. v Romania

Recognition of same-sex marriages in the context of freedom of movement in the EU through the prism of implementation of CJEU’s Coman judgment Submitted jointly […]
read more
News

European Commission and Council should refrain from approving recovery funds to the governments of Poland and Hungary

An Urgent call on the European Commission and the Council of europe to refrain from approving recovery funds to the governments of Poland and Hungary, […]
read more
News

EU Ministers must act on the serious breach of EU’s rule of law and values in Poland

While Poland keeps attacking LGBTI people and their rights, ILGA-Europe have signed a joint letter along with 86 other NGOs asking EU Ministers to take action.
read more
Blog

How Baby Sara and her mums have pushed forward the rights of all rainbow families across the EU

When an EU country recognises a child and its same-sex parents as a family, all EU countries should recognise them as such, so to guarantee their freedom of movement. This is what the EU’s top court ruled in December. But how this case has advanced LGBTI rights in the European Union and what comes next for rainbow families?
read more
Case Law

Macaté v. Lithuania

Freedom of expression, warning labels restricting artistic expression.
read more
Podcast

Hope and the LGBTI Movement in 2021

It was a year of further lockdowns, of new strains of the COVID virus, and the uncertainty they have brought, and most of all, enormous […]
read more
Blog

What has 2021 meant to the LGBTI movement in Europe? Listen to our latest podcast episode to find out this year’s highlights

As 2021 comes to an end, we have collected some of the moments, events and trends that have marked the year in the latest episode of The Frontline, ILGA-Europe’s podcast about LGBTI activism and lives in Europe and Central Asia. Read here some of the episode’s highlights and find out reasons to stay hopeful in 2022.
read more
Press Release

Top EU Court Recognises Relationship of Same-sex Parents and their Children Under EU Law

In a landmark judgement, the Court of Justice of the European Union has ruled that a child and its same-sex parents must be recognised as […]
read more
Case Law

Coman and Others v Romania

Recognition of same-sex marriages in the context of freedom of movement in the EU through the prism of implementation of CJEU’s Coman judgment.
read more
Blog

How trans parents are better protected after European Court ruling

Recently, the European Court of Human Rights ruled in favour of a trans woman in Russia who was denied access to her children because of her gender identity and transition. Read on to find out how this may benefit all trans and LGBTI parents in Europe.
read more
Report

Poland Anti-LGBTI Hate Timeline

Over the past number of years, LGBTI people have come under increasing attack from ruling politicians, religious leaders and other public figures in Poland. This […]
read more
News

European Court rules in favour of the best interest of the child in same-sex custody case

The European Court of Human rights has ruled that the refusing a mother custody of her youngest child on the grounds of her sexual orientation to be discriminatory and a violation of her right to private and family life.
read more
Podcast

The frontline: Queer and the Media: with Ben Hunte

Ben Hunt’s first year on the job as BBC LGBT Correspondent* has been an unprecedented one, with the rise of anti-LGBT hatred in Europe, marked […]
read more
Press Release

With today’s infringements the EU has clarified that member states can no longer act against human rights with impunity

According to ILGA-Europe, the infringement procedures announced by the European Commission today show that the EU has come to a tipping point; after years of […]
read more
Press Release

LGBTI organisations welcome European Court judgement in favour of trans parental rights in Russia

Today, in a landmark judgement strongly welcomed by TGEU and ILGA-Europe, the European Court of Human Rights has ruled in favour of a woman in […]
read more
Blog

Freedom of movement for same-sex spouses: The Coman Case, 3 years on

ON 5 JUNE 2018, THE COURT OF JUSTICE OF THE EUROPEAN UNION (CJEU) ISSUED A LANDMARK JUDGEMENT AGAINST ROMANIA, RECOGNISING THAT THE TERM SPOUSE INCLUDES SAME-SEX SPOUSES UNDER EU FREEDOM OF MOVEMENT LAWS. THREE YEARS LATER, CLAI HAMILTON, SPOUSE OF ROMANIAN CITIZEN ADRIAN COMAN, HAS NOT BEEN GRANTED RESIDENCY YET. NOW THEY’VE BROUGHT THE CASE TO THE EUROPEAN COURT OF HUMAN RIGHTS (ECHR). HERE, ADRIAN COMAN TALKS ABOUT THE ORIGINAL CASE, AND HIS HOPES WITH THIS LATEST DEVELOPMENT.
read more
Blog

6 Things You Didn’t Know About Rainbow Family Rights in Europe

Across Europe, the rights of rainbow families are divergent, yet every European country has one thing in common: legal protection for LGBTI parents and their children is stalling. To mark International Day of Families 2021, we look at the situations and challenges for rainbow families across the region.
read more
Podcast

Rainbow Family Rights in Europe – Part 4: At a Crossroads in Ukraine

Several pathways for partnership rights were part of the Ukraine took in EU-Ukraine Association agreement 2014-2016. Based on it the Ukrainian government developed a human […]
read more
Podcast

Rainbow Family Rights in Europe – Part 1: The Coman Case Three Years On

Three years ago, Adrian and his partner Clai were successful bringing their case to the Court of Justice of the European Union, which judged that […]
read more
BlogPodcast

Listen: Rainbow Family Rights in Europe in 2021 and Beyond

ILGA-Europe’s podcast The Frontline presents a brand-new mini-series looking at the many issues affecting LGBTI parents and their children across Europe.
read more
Podcast

Rainbow Family Rights in Europe – Part 2: Baby Sara, Stateless Child

We meet Kalina and Jane, from Bulgaria and the UK respectively. Because their daughter Sara was born in Gibraltar, she cannot claim UK citizenship via […]
read more
Podcast

Rainbow Family Rights in Europe – Part 6: The Future

ILGA-Europe’s advocacy director, Katrin Hugendubel and Björn Sieverding from the Network of European LGBTIQ Families explore the issues coming down the line in terms of […]
read more
Podcast

Rainbow Family Rights in Europe – Part 5: The Rights of Trans Parents and their Children

In March 2021, Transgender Europe (TGEU) published the report, “Stuck on the swing: experiences of trans parents with freedom of movement in the EU”, in […]
read more
Podcast

Rainbow Family Rights in Europe – Part 3: The Western Balkans

We are joined by Danijel Kalezi?, president of the Governing Board of Queer Montenegro, which helped usher in legislation for civil unions for same-sex couples, […]
read more