Case BriefsInternational Courts

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.

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., while addressing an issue with respect to protection to the same-sex couple, expressed that:

“…I am also trying to break my own preconceived notions about this issue and I am in the process of evolving, and sincerely attempting to understand the feelings of the Petitioners…”

Pursuant to the earlier order passed by this Court on 22-03-2021, considering the sensitivity of the issue, the matter was directed to be posted in chambers.

Petitioner 1 aged 22 years completed B.Sc. Mathematics and was presently pursuing M.B.A. in correspondence mode. Petitioner 2 aged 20 years pursued B.A. Tamil through correspondence mode.

Both the petitioners have known each other for the last 2 years and both of them in unison stated that their friendship blossomed into love and clearly stated that they wanted to be partners.

The petitioners did not mince any words and there was so much clarity in what they wanted to convey.

Petitioner’s parents did not like the relationship between the petitioners, due to which pressure started mounting and hence the petitioners left for Chennai. They are looking for a job in order to financially sustain themselves.

High Court individually interacted with parents of the respective petitioners and noted that the parents were worried and concerned about the security of the petitioners that they should not get exploited. The parents were also eager to talk with their respective daughters.

Further, Bench requested the Mediation Centre to allot two cabins to enable the parents to have one-to-one interaction with their daughters.

Court referred the petitioners and their respective parents to a counsellor who specializes in working with LGBTQI + individuals and added that:

“This move becomes very vital since this Court is moving into unchartered waters, and a report from a specialist will provide support to this Court to move forward in this case.”            

Bench expressed that:

“…I am also trying to break my own preconceived notions about this issue and I am in the process of evolving, and sincerely attempting to understand the feelings of the Petitioners and their parents thereafter, proceed to write a detailed Order on this issue. That is the reason why I am trying to develop this case brick by brick and ultimately, construct something purposeful on this issue.”

High Court informed the parties that the counselling will take place during the third week of April, 2021.

Court also requested Ms Vidya Dinakaran, M.Sc. Counselling Psychology, to counsel the parties and the request was readily accepted by the specialist.

Prima facie, Court got an impression that the parties will work towards a peaceful resolution, and what is required for the present was an understanding of the issue at hand. Petitioners even agreed to interact with their parents on a regular basis.

While concluding, the Government Advocate submitted that the police will not interfere in the present issue any longer, and that the complaints will be immediately closed.

Matter to be posted on 28-04-2021. [S. Sushma v. Director General of Police, 2021 SCC OnLine Mad 1290, decided on 29-03-2021]


Read more:

Madras HC | Society still grappling to come to terms with same sex orientation: HC orders protection and in-chamber hearing

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., while addressing a concern with respect to threat to life and liberty of the same-sex couple, stated that:

“…it is a sample case of how the society even now is grappling to come to terms with same sex orientation.”

Petitioners have same-sex relationship and the same was being opposed by the 4th and 5th respondents, who are the father of the respective petitioners.

Petitioner counsel, Manuraj submitted that since the parents did not agree with the same sex relationship, complaints were registered and two FIRs wherein it was submitted that a girl was missing.

Petitioners were being made to run from pillar to post for their own safety and security. Counsel submitted that the respondent police should be directed not to cause harassment to the petitioners and also ensure that no danger from the 4th and 5th respondents would be caused.

Government Advocate on behalf of the respondent Police submitted that police will be instructed in this regard and safety will be ensured.

Bench in view of the facts and circumstances of the matter expressed that, the case in hand requires to be dealt with more sensitivity and empathy.

Matter to be posted on 29-03-2021, in his Lordship’s Chamber. [S. Sushma v. Director General of Police, 2021 SCC OnLine Mad 1188, decided on 22-03-2021]

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. K. Mishra and Savitri Ratho, JJ. allowed a same-sex couple to live in together and to provide them with all kinds of protection as enshrined in Part III of the Constitution.

The facts are that the petitioner who was originally a female has now chosen by the right of self-determination to be identified as he/him before the court. The petitioner and the daughter of respondent  5 are major who fell in love and are now living together as a couple with mutual consent since 2017. But, the respondents have forcibly taken her from the petitioner’s resident and now want to marry her off to someone else against her will. Hence this instant writ petition of habeas corpus under Articles 226 and 227 have been filed to demand the appearance of his partner before the court.

Counsel Clara D’ Souza, S. Soren and H.B. Dash represented the petitioner’s side and Counsel Saswata Pattnaik and Arun Kumar Budhia represented the respondent’s side.

The court spoke to the petitioner’s partner who agreed to the version of the petitioner and prayed the court to allow her to live with the petitioner at the earliest.

The Court relied on various judgments, important being National Legal Services Authority v. Union of India, (2014) 5 SCC 438 and held:

“Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without arbitrary or unlawful interference, including with regard to their family, home or correspondence as well as to protection from unlawful attacks on their honour and reputation. The right to privacy ordinarily includes the choice to disclose or not to disclose information relating to ones sexual orientation or gender identity, as well as decisions and choices regarding both ones own body and consensual sexual and other relations with others.”

 The court also relied on Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1 and Navtej Singh Johar v Union of India, (2018) 10 SCC 1 wherein the law has been settled regarding the right of a person for self-determination of his/her sex/gender and consequently the right to have a live-in relationship.

 In the case of Shakti Vahini v Union of India, (2018) 7 SCC 192 it was observed

“The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. True it is, the same is bound by the principle of constitutional limitation but in the absence of such limitation, none, we mean, no one shall be permitted to interfere in the fructification of the said choice.”

 Keeping in mind the observations stated above, the court reiterated that the couple has a right to have a live-in relationship with a person of his choice even though such person may belong to the same gender as the petitioner.

In view of the above, writ petition stands disposed off.[Chinmayee Jena v. State of Odisha, 2020 SCC OnLine Ori 602, decided on 24-08-2020]


*Arunima Bose, Editorial Assistant has put this story together

Case BriefsForeign Courts

Singapore High Court (Family Division): A Three-Judge Bench comprising of Sundaresh Menon, CJ.,  Judith Prakash, JA., and  Debbie Ong, J., allowed an adoption order in the favor of a same-sex couple.

The facts of the case are that the appellant was a gay man.  He wanted to adopt his biological son who was conceived through in-vitro fertilization and was born in the US by a surrogate mother. She was paid by the appellant for her services. She then abdicated her parental rights over the child, whom the appellant and his partner then brought to Singapore.  In these circumstances, the principal question was whether an adoption order would serve the best interests of the child considering the parenting arrangement and the ethics of the means by which his birth was procured.  The court focused on the difficult interplay between law and public policy in the determination of this question. Here the court answered the question that whether or not the appellant should be allowed to adopt his son. It also discussed the appropriate methodology to be applied in determining and weighing the material considerations of public policy that may bear on this particular issue.

The court gave an adoption order in the favor of the appellants.  The Court, while doing this, held that in determining this question the main concern should be the welfare of the child. Attention must be given not only to his psychological and emotional development but also to the environment within which his sense of identity, purpose and morality will be cultivated. The Court held that the welfare of a child refers to his well-being in every aspect, that is, his well-being in the most exhaustive sense of that word. It refers to his physical, intellectual, psychological, emotional, moral and religious well-being. It refers to his well-being both in the short term and in the long term. The inquiry under the Adoption of Children Act requires an assessment of the impact of making an adoption order on the child’s welfare, and if the court is not satisfied that the impact of such an order would be for the child’s welfare, then the Court cannot make the order. The welfare of the child ought to define the scope of the inquiry.

The Court also held that the adoption of a child clearly concerns his “upbringing”, and therefore, an adoption proceeding must be a proceeding concerning the upbringing of a child within the meaning of Section 3 of the Act. Section 3 was said to apply “whatever the proceedings, as long as within such proceedings an issue of the custody or upbringing of a child arises”, such that the consideration of the child’s welfare is the “ubiquitous” standard by which all such proceedings are to be guided.

The Court next addressed the appellant’s submission that an adoption order should nevertheless not be made because it would be in violation of public policy. In the Court’s view, there was a legal basis, in Section 3(1) of the Act, for the Court to take public policy considerations into account in arriving at its decision in this case. In evaluating this submission, the first question that was addressed was whether there was any legal basis for the Court to take public policy considerations into account in arriving at its decision in this case. The Court held that there was both a statutory basis and a common law basis for doing so, although, having regard to the specific public policies that the appellant relies on, it is the statutory basis that was applied here.

The Court attributed significant weight to the concern not to violate the public policy against the formation of same-sex family units on account of its rational connection to this dispute and the degree to which this policy would be violated should an adoption order be made.

The Court said that neither of these reasons were sufficiently powerful to enable it to ignore the statutory imperative to promote the welfare of the child, and to regard his welfare as first and paramount. The welfare of the child should always be kept before public policy consideration. Thus the Court concluded that an adoption order ought to be made in this case. [UKM v Attorney-General, [2018] SGHCF 18, decided on 17-12- 2018]