ECJ holds Bulgaria obligated to recognize same sex couple as parents of a child even when its national law does not recognize the concept of marriage between homosexuals

European Court of Justice: The Bench composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, A. Arabadjiev, K. Jürimäe, C. Lycourgos, E. Regan, N. Jääskinen, I. Ziemele and J. Passer, Presidents of Chambers, M. Ilešič (Rapporteur), J.-C. Bonichot, T. von Danwitz and N. Wahl, JJ., directed Bulgaria to recognize same sex couple as parents of a child irrespective of the fact that Bulgaria does not recognizes the concept of marriage between homosexuals. The Bench held that,

“It would be contrary to the fundamental rights which are guaranteed to the child under Articles 7 and 24 of the Charter for the Child to be deprived of the relationship with one of her parents when exercising her right to move and reside freely within the territory of the Member States on the ground that her parents are of the same sex.”

V.M.A. and K.D.K., a same sex couple resided in Spain since 2015. In December 2019, they had a daughter, S.D.K.A., whose birth certificate, issued by the Spanish authorities, refers to V.M.A. as ‘Mother A’ and to K.D.K. as ‘Mother’ of the child. Noticeably, V.M.A. was a Bulgarian national while K.D.K was a national of United Kingdom.

The issue arose when in January 2020, V.М.А., applied to the Sofia municipality, Bulgaria for a birth certificate for S.D.K.A. to be issued to her, which was necessary for the issue of a Bulgarian identity document. However, the municipality refused to issue the birth certificate for the lack of information concerning the identity of the child’s biological mother and the fact that a reference to two female parents on a birth certificate was contrary to the public policy of the Republic of Bulgaria, which does not permit marriage between two persons of the same sex.

Questions Referred

The referring Court-Administrative Court of Sofia, asked whether Article 4(2) TEU could serve as justification for the Bulgarian authorities’ refusal to issue a birth certificate in respect of S.D.K.A as any obligation to draw up a birth certificate mentioning two female individuals as the child’s parents could have an adverse effect on public policy and on the national identity of the Republic of Bulgaria, since the Bulgarian Constitution and Bulgarian family law do not provide for the parenthood of two persons of the same sex.

The referring Court also asked whether refusal to issue a birth certificate infringes the rights conferred on such a national in Articles 20 and 21 TFEU and Articles 7, 9, 24 and 45 of the Charter of Fundamental Rights of the European Union, albeit it would have no legal effect on the Bulgarian nationality of the child and consequently on that child’s Union citizenship, however it may hinder that child’s exercise of the right of free movement and thus full enjoyment of her rights as a Union citizen.

Consideration of the questions referred

Under Article 20(1) TFEU, every person holding the nationality of a Member State is to be a citizen of the Union hence, the Bench opined that as a Bulgarian national, S.D.K.A. enjoys the status of Union citizen under that provision. Accordingly, the Bulgarian authorities are required to issue to her an identity card or a passport stating her nationality and her surname as it appears on the birth certificate drawn up by the Spanish authorities to enable S.D.K.A. to exercise the right to move and reside freely within the territory of the Member States, guaranteed in Article 21(1) TFEU, with each of the child’s two mothers, whose status as parent of that child has been established by their host Member State.

In so far as Bulgarian law requires a Bulgarian birth certificate to be drawn up before a Bulgarian identity card or passport is issued, the Bench stated that Member State cannot rely on its national law as justification for refusing to draw up such an identity card or passport as Article 4(3) of Directive 2004/38 requires the Bulgarian authorities to issue an identity card or a passport to S.D.K.A. regardless of whether a new birth certificate is drawn up for that child.

Whether there was parent-child relationship?

Observing that the Spanish authorities lawfully established that there was a parent-child relationship, biological or legal, between S.D.K.A. and her two parents, and attested this in the birth certificate issued in respect of the child, the Bench stated that, therefore the Bulgarian authorities were required to recognise that parent-child relationship for the purposes of permitting S.D.K.A. since she had acquired Bulgarian nationality, to exercise without impediment, with each of her two parents, her right to move and reside freely within the territory of the Member States as guaranteed in Article 21(1) TFEU.

In addition, in order to enable S.D.K.A. to exercise her right to move and reside freely within the territory of the Member States with each of her two parents, V.M.A. and K.D.K. must as well have a document which mentions them as being persons entitled to travel with that child.

Same Sex Marriage, a Concept foreign for Bulgaria

It is true, the Bench noted, that Article 9 of the Charter provides that the right to marry and the right to found a family are to be guaranteed in accordance with the national laws which makes the member States free to decide whether or not to allow marriage and parenthood for persons of the same sex under their national law, however, the added, in exercising that competence, each Member State must comply with EU law, in particular the provisions of the FEU Treaty on the freedom conferred on all Union citizens to move and reside within the territory of the Member States, by recognising the civil status of persons that has been established in another Member State in accordance with the law of that other Member State.

Therefore, the Court held that in the instant case, parent-child relationship being recognized by the Spain the same shall be recognized in Bulgaria.

Same Sex Marriage and Public Policy

Article 2 of the convention establishes, for the child, the principle of non-discrimination, which requires that that child is to be guaranteed the right to be registered immediately after birth, the right to a name and the right to acquire a nationality, without discrimination against the child in that regard, including discrimination on the basis of the sexual orientation of the child’s parents.

Citing Coman v Inspectoratul General pentru Imigrări, [2019] 1 WLR 425, the Bench stated that public policy may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society. The Bench added,

“The concept of public policy as justification for a derogation from a fundamental freedom must be interpreted strictly, with the result that its scope cannot be determined unilaterally by each Member State without any control by the EU institutions.”

The obligation for a Member State to recognise the parent-child relationship and to issue an identity card or a passport to a child whose birth certificate issued by the another Member State recognizes a same sex couple as the child’s parents in the context of the child’s rights under Article 21 TFEU does not undermine the national identity or pose a threat to the public policy of that Member State.

Whether Bulgaria bound to Change its Public Policy?

The Bench clarified that the obligation to recognize parent-child relationship in the instant case do not require the Member State of which the child concerned is a national to provide, in its national law for the parenthood of persons of the same sex, or to recognise, for purposes other than the exercise of the rights which that child derives from EU law, the parent-child relationship between that child and the persons mentioned on the birth certificate drawn up by the authorities of the host Member State.

Conclusion

The Bench concluded, in the case of a child, being a minor, who is a Union citizen and whose birth certificate issued by the competent authorities of the host Member State designates as that child’s parents two persons of the same sex, the Member State of which that child is a national is obliged,

To issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and

To recognise, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States. [V.М.А. v. Sofia Municipality, Bulgaria, Case C-490/20, decided on 14-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

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