The EU’s top court has formally recognised the relationship of same-sex parents and their children under EU law.
In a landmark judgement, the Court of Justice of the European Union (CJEU) has ruled that a child and her same-sex parents must be recognised as a family, the child should be issued a Bulgarian passport, and the family should have free movement in all member states of the European Union.
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In a ruling on December 14, the CJEU said that if one EU member state recognises a parental relationship between a child and its parents, then all member states should, in order to give the child its right to freedom of movement.
The case arose when a same sex couple were refused a birth certificate in Bulgaria for their infant daughter, who was born in Spain. The Bulgarian authorities asserted that the couple, one of whom is Bulgarian, could not be registered as parents on the child’s birth certificate, leaving the family in legal limbo.
Deprived of citizenship
Bulgaria-born Kalina Ivanova and Gibraltar-born Jane Jones (both names have been changed) are the mothers of Sara, who was born in Spain in 2019. Under current Spanish law, the child could not acquire Spanish citizenship because neither Ivanova nor Jones is a Spanish citizen. The child was also denied British citizenship because Jane was born in Gibraltar of British descent, and under the British Nationality Act cannot transfer citizenship to her daughter.
As such, Ivanova requested Bulgarian citizenship for their daughter. However, the Bulgarian authorities rejected the application, arguing that a child cannot have two mothers, and refused to issue a birth certificate in which the parents are two persons of the same sex.
Sara was therefore deprived of Bulgarian, and therefore European citizenship, and was at risk of statelessness. Currently, the child has no personal documents and cannot leave Spain, the country of the family’s habitual residence. The lack of documents restricts Sara’s access to education, healthcare, and social security in Spain.
In Bulgaria, same-sex marriages and same-sex registered partnerships are not recognised.
Following the CJEU’s ruling, the Bulgarian authorities are obliged to issue an identity card or a passport to Sara, which all other EU member states are obliged to recognise.
A victory for all rainbow families
Welcoming the ruling, Sara’s parents said: “We are thrilled about the decision and cannot wait to get Sara her documentation and finally be able to see our families after more than two years. It is important for us to be a family, not only in Spain but in any country in Europe and finally it might happen. This is a long-awaited step ahead for us but also a huge step for all LGBT+ families in Bulgaria and Europe.”
According to Arpi Avetisyan, head of litigation at Europe’s leading LGBT+ rights organisation, ILGA-Europe, which provided strategic legal support: “We are very pleased with CJEU’s judgment this morning. It gave legal endorsement to the European Commission President Ursula von der Leyen’s words, delivered during last year’s State of the Union address: ‘If you are a parent in one country, you are parent in every country’.
“The judgment has brought long-awaited clarification that parenthood established in one EU member state cannot be discarded by another, under the pretence of protecting the ‘national identity’. This is a true testament to the EU being a union of equality and we look forward to seeing rainbow families enjoying their right to freedom of movement and other fundamental rights on equal footing to anyone else. It is important that the judgment is implemented imminently, not only for baby Sara and her family, but also for other families facing similar struggles across the EU.”
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