The right to non-discrimination and the right to equality before the law are fundamental principles of international human rights law. Article 2 of the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989 provides that ‘The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.’ Thus, in this article, the matter of same sex parentage will be addressed from a legal perspective, in order to shed light on the great need for a same sex parentage protective framework, as a key human right of LGBTQ+ communities.
The European Convention for the Protection of Human Rights and Fundamental Freedoms protects the right to respect for family life, the right to marry, and the right not to be discriminated against on the basis of sex. Following these principles of International Human rights law, on December 14, 2021, the European Court of Justice (CJEU) in the case of V.М.А. v/s Stolichna obshtina, rayon ‘Pancharevo’ held that a parent-child relationship established in one Member State shall be recognised in all other Member States, independent of the Member State’s stance on same-sex marriage.
This case concerns a child whose mothers are a Bulgarian national and a United States national living in Spain. The child was unable to receive her Bulgarian identity documents, refusing to issue a birth certificate and declining to recognise the parent-child relationship between them. The parentage – that had already been recognized by the Spanish authorities- was denied on two grounds. First, that Bulgaria does not recognise same-sex marriages, since the conception of traditional family is a value protected as an element of national identity within the meaning of Article 4(2) Treaty on the Functioning of the European Union (TEU). Secondly, that there is no proof of a biological link between the Bulgarian mother and the child.
The petitioner filed an appeal against the refusal judgement with the Sofia Administrative Court, which referred the issue to the CJEU. The main question before the CJEU was whether the refusal to issue the birth certificate in the present case is violative of the right to move and reside freely within the territory of the European Union pursuant to Article 21(1) TEU. The CJEU was also called upon to analyse whether any restriction to the freedom of movement may be justified, in the light of Article 4(2) TEU which guarantees respect for the national identities of the Member States.
Issue 1 – Whether the refusal to issue the birth certificate violates Article 21(1) TFEU
The court, relying on the decisions passed in the case of Grzelczyk, C‑184/99 held that Union citizenship provides the fundamental status of nationals of the Member States. A national of a Member State can claim the rights pertaining to Union citizenship, in particular the rights provided for in Article 21(1) TFEU. Additionally, Union citizens who were born in the host Member State of their parents can also rely on that provision and the measures adopted to give it effect. In order to enable their nationals to exercise that right, Article 4(3) of Directive 2004/38 requires Member States to issue to their own nationals an identity card or passport stating their nationality. Furthermore, the court relying on the judgement of Grunkin and Paul, C‑353/06, stated that Article 21 TFEU precludes a Member State from refusing to recognise a child’s surname as registered in a second Member State where the child was born and has been resident since birth. Thus, in the present case, Bulgarian authorities were ordered to issue the child 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. Such a documentation would enable the child to exercise the right to move and reside freely within the territory of the Member States, guaranteed in Article 21(1) TFEU.
Issue 2 – Whether Article 4(2) TEU could serve as justification for the refusal to issue a birth certificate
Under Article 4(2) TEU, the European Union is to respect the national identities of its Member States, inherent in their fundamental structures, political and constitutional. The CJEU determined that a child’s exercise of her rights under Article 21 TFEU did not jeopardise the national identity or public policy of a member state. Such an exercise of a child’s right does not require the Member State to recognise same sex parentage in its national law for purposes other than the recognition of the child’s rights under EU law. The court went on to hold that a national measure that can restrict people’s freedom of movement may only be justified if it is in accordance with the EU Charter’s fundamental rights. The CJEU previously held in the case of Nabiel Peter Bogendorff von Wolffersdorff v/s Standesamt,, that a Member State’s national identity can be recognised only if it is generally compatible with fundamental principles of EU law, such as EU citizen equality. It is against the fundamental rights protected by Articles 7 and 24 of the Charter for a child to be separated from one of her parents while exercising her right to free movement because her parents are of the same sex. Therefore, an obligation to recognise such marriages for the sole purpose of exercising the rights under EU law does not undermine the national identity of the Member State concerned.
The CJEU’s decision is consistent with existing EU law jurisprudence. In the case of Relu Adrian Coman, the CJEU ruled in 2018 that a Member State cannot bar a same-sex couple legally married in another Member State from enjoying their right to free movement within the EU. In the case of Mennesson v/s France, the French consulate had refused to register the particulars of the birth certificates of a child born through surrogacy to French Nationals. The European Court of Human Rights ruled that France had violated Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms with regard to the child’s right to respect for their private life, which includes the legal parent-child relationship. Furthermore, the CJEU in Adrian Coman and Others v. Romania, had upheld the right of Same-Sex Spouses under EU Law to move freely between EU Member States. Thus, the rights which nationals of Member States enjoy under Article 21(1) to lead a normal family life should be upheld both in host Member State and in the Member State of which they are nationals. The current ruling on same sex parentage is a significant step towards a safer and more just European Union Europe’s LGBTQ+ community.
- Marie Digoix, Same-Sex Families and Legal Recognition in Europe, (2020), 24, Springer International Publishing 178
- ‘EU’s top court boosts the rights of same-sex parents’, Independent, Tuesday 14 December 2021, https://www.independent.co.uk/news/bulgaria-ilga-european-court-of-justice-brussels-ursula-von-der-leyen-b1975968.html
- Alina Tryfonidou, ‘The Cross-Border Recognition of the Parent-Child Relationship in Rainbow Families under EU Law: A Critical View of the ECJ’s V.M.A. ruling’, (European Law Blog), https://europeanlawblog.eu/2021/12/21/the-cross-border-recognition-of-the-parent-child-relationship-in-rainbow-families-under-eu-law-a-critical-view-of-the-ecjs-v-m-a-ruling/, (Accessed: 10 April 2022)
- Reuters Staff, ‘Top EU court rules Bulgaria must issue ID to child of two mothers’, Reuters, 14 December 2021, https://www.reuters.com/article/eu-bulgaria-court-mothers-idUSL8N2SZ4IW
- Tryfonidou, A, ‘The parenting rights of same-sex couples under European law. Marriage, Families and Spirituality’, (2020), Peeters Online Journals, doi: https://doi.org/10.2143/INT.25.2.3287505.