The Luxembourg-based EU Court of Justice has issued a judgment in the case of a child of a same-sex couple involving the refusal by the Bulgarian capital’s Sofia municipality to issue a birth certificate to the child, ordinarily a required step towards obtaining an identity document.
At the centre of the case are a Bulgarian national and her spouse who have lived in Spain in 2015 and were married there in 2018. Their child was born in Spain in 2019.
The child’s birth certificate, drawn up by the Spanish authorities, refers to both mothers as being the parents of the child.
Since a birth certificate issued by the Bulgarian authorities is necessary to obtain a Bulgarian identity document, the Bulgarian national applied to Sofia municipality for a birth certificate for the child.
In support of her application, the Bulgarian national submitted a legalised and certified translation into Bulgarian of the extract from the Spanish civil register relating to the child’s birth certificate.
Sofia municipality told the Bulgarian national to provide evidence of the parentage of the child, with respect to the identity of her biological mother.
The model birth certificate used in Bulgaria has only one box for the ‘mother’ and another for the ‘father’, and only one name may appear in each box.
The Bulgarian national took the view that she was not required to provide the information requested, whereupon Sofia municipality refused to issue the requested birth certificate because of 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 Bulgarian public policy, which does not permit marriage between two persons of the same sex.
The Bulgarian national took the matter to the Sofia Administrative Court, which in turn approached the EU Court of Justice to interpret the relevant clauses of the EU Treaty.
“It (the Sofia court) asks, in essence, whether those provisions oblige a Member State to issue a birth certificate, in order for a Bulgarian identity document to be obtained, for a child, a national of that Member State, whose birth in another Member State is attested by a birth certificate that has been drawn up by the authorities of that other Member State in accordance with the national law of that other State, and which designates, as the mothers of that child, a national of the first of those Member States and her wife, without specifying which of the two women gave birth to that child,” the EU court said in a media statement on its judgment.
The EU court said that in the case of a child, being a minor, who is an EU 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, as is any other Member State, 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.
The court said that since the child has Bulgarian nationality, the Bulgarian authorities are required to issue to her a Bulgarian identity card or passport stating her surname as it appears on the birth certificate drawn up by the Spanish authorities, regardless of whether a new birth certificate is drawn up.
The rights which nationals of EU countries enjoy under the EU Treaty include the right to lead a normal family life, together with their family members, both in their host Member State and in the Member State of which they are nationals when they return to the territory of that Member State, the court said.
Since the Spanish authorities have lawfully established that there is a parent-child relationship, biological or legal, between the child and her two parents, attested in the birth certificate issued in respect of the child, the married couple must be recognised by all EU countries as having the right, as parents of a Union citizen who is a minor and of whom they are the primary carers, to accompany that child when she is exercising her rights, the court said.
“Admittedly, a person’s status is a matter which falls within the competence of the Member States, which are free to decide whether or not to allow marriage and parenthood for persons of the same sex under their national law.
“In exercising that competence, each Member state must comply with EU law, in particular the Treaty provisions on Union citizens’ freedom of movement and of residence, by recognising, for that purpose, the civil status of persons that has been established in another Member State in accordance with the law of that other Member State,” the EU court said.
The court said that the obligation to issue an identity document “does not require the Member State concerned 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 the 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 as being the child’s parents”.
The court said that a national measure that is liable to obstruct the exercise of freedom of movement for persons may be justified only where it is consistent with the fundamental rights guaranteed by the EU charter of fundamental rights.
“It is contrary to the fundamental rights guaranteed by 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 of free movement or for her exercise of that right to be made impossible or excessively difficult on the ground that her parents are of the same sex,” the court said.
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