The highest judicial body of the EU – the European Court of Justice in Luxembourg – ruled that all countries – members of the community, without exception, are obliged to recognize same-sex couples and their children as families. The reason for the trial was the tangled story of a two-year-old baby Sarah, who turned out to have “two mothers” at once and not a single citizenship.
According to the European publication Politico, baby Sarah lives in Spain, where she was born in 2019. There she was given a birth certificate, in which two mothers were indicated as parents at once – the Bulgarian Kalina Ivanova and the British Jane Jones, originally from Gibraltar. Who of them is the biological mother of the girl, the couple hides. Since none of the women have Spanish citizenship, Sarah cannot apply for a Spanish passport either. At the same time, according to British law, Jones, as a native of Gibraltar, is not entitled to transfer to his daughter and citizenship of the United Kingdom. Then Mrs. Ivanova decided to apply to her homeland so that Sarah would be granted citizenship of Bulgaria, and hence of the European Union.
However, same-sex marriage is not officially allowed in the Balkan republic. Therefore, they refused, firstly, to recognize the Spanish birth certificate, where the child has “two mothers”, secondly – to issue a similar Bulgarian one, thirdly – to make Sarah a Bulgarian passport. Due to the unconventional family history, the baby risked remaining stateless and without the right to travel outside Spain at all, where she would not have full access to social benefits, health care and education. Then the “Bulgarian mother” Sarah went to the Administrative Court of Sofia, where, apparently, they never faced such unusual cases. The judges just threw up their hands and advised the “mothers” to seek clarification from their colleagues in Luxemuberg.
Same-sex marriage is recognized only by 16 out of 27 EU countries
As a result, the Court of Justice of the European Union ruled as follows: if one EU state recognizes the family relationship of a child, including with a same-sex couple, then the other EU states are obliged to do the same in order to guarantee the child’s right to freedom of movement. Only 16 out of 27 EU countries recognize same-sex marriages. What about the rest? The court formally affirmed that each EU member still has “the freedom to decide whether or not to recognize the marriage and parental rights of persons of the same sex in accordance with their national legislation.”
That is, Bulgaria may still not consider same-sex unions as a family, but she will in fact have to recognize Sarah’s family – and issue the girl a passport on the basis of a Spanish birth certificate. Now it is up to the court in Sofia, which “is obliged to make its own decision in accordance with the line of the court in Luxembourg.” This decision was immediately welcomed by the Bulgarian LGBT community. It turns out that it may be relevant for 100-150 thousand minors living in same-sex unions. There has been no reaction from EU countries that do not recognize both same-sex marriage and adoption of children by same-sex couples. And there are many of them. Among them are Latvia, Lithuania, Hungary, Croatia, Greece, Cyprus. In some countries, the adoption of a biological child by his partner or, in principle, any child is permissible, but not on behalf of the whole couple, but as a separate parent.
View from Italy
Neither the official Italian authorities nor the Holy See have yet reacted to the decision of the Supreme Judicial Body of the European Union, nevertheless, it is quite expected that it will be enforced with difficulty in the Apennines. All previous steps in this direction in a country with deep Catholic roots, which takes into account the opinion of the Vatican, to one degree or another ran into obstacles. In 2016, under pressure from the European Court of Human Rights, Italy was the last founding country of the European Union to legalize same-sex civil unions. However, from the final text of the draft document, an article was excluded, providing for the adoption by same-sex couples of biological children of partners. All these years, LGBT couples have tried to win this right for themselves. To date, in 2018, in Turin, only three same-sex people managed, with the consent of the then mayor of the city, Chiara Appendino, to legally register their children with both parents. True, this trend did not spread further than Turin. According to Laura Ferrara, MEP from the 5 Star Movement, thanks to the decision of the Luxembourg court, “henceforth, Italian municipalities cannot ignore the fact that children’s rights should be more important than political and ideological battles.” Whether this will happen in practice is a big question. Suffice it to recall the story of the bill providing for the expansion of the rights of the LGBT community and the introduction of criminal liability for homophobia in the country. In October, he was denied Senate approval after the conservative public, center-right parties and the Vatican rallied together.
Prepared Niva Mirakyan (Rome)
View from Poland
In Poland, this decision of the EU court has no future, but there are prerequisites for a new round of legal confrontation between Warsaw and Brussels. The Polish Constitutional Court just a few months ago ruled that the country’s fundamental law takes precedence over European legal acts. And article 18 of the constitution speaks of “marriage as a union of a man and a woman, subject to the protection and guardianship of Poland.” According to experts, for the same reason, it is impossible to expect a same-sex couple to be recorded as parents on a child’s birth certificate, because this would mean recognizing the existence of a same-sex family. Among the Poles, there were those who wanted to challenge these provisions. For example, two Poles married in Portuguese Madeira – Jakub and David – tried to enter their marriage details in the Polish civil registry, but were refused. They filed a lawsuit against the decision of state bodies, citing article 31 of the constitution, which obliges the state to protect the freedom of every person. However, the court, as expected, sided with the defendant. The judge explained that the entry in the constitution does not clearly prescribe the mechanism of “protection and guardianship” of marriage, but this is exactly what the family code is for. And in it, same-sex couples have no chance. The children of such spouses born abroad have the right to obtain citizenship of their country and all the necessary documents in Poland, but people of the same sex cannot be recorded as parents in these documents. This means that the Polish administrative authorities do not accept birth certificates and do not issue other documents based on them, if the column “parents” says: Mr. and Mr., or Mrs. and Mrs.
Prepared Ariadna Rokossovskaya
.