By Kosha Doshi and Naga Sumalika Rangisetti (3rd year students at Symbiosis Law School - India)
Europe in general and the European Union (EU) in particular, have seen a remarkable surge in the prevalence of countries that provide legal recognition to informally cohabiting (same-sex) partners, as well as the number of countries that allow same-sex couples to marry or at least enter into a form of registered partnership. However, even in some countries where same-sex marriage is accepted, same-sex parentage is questioned. Pride month is celebrated every year in June and, within this context, it is important to remember that the rights of bisexuals, trans and LGBTQI+ parents have not been treated on par as heterosexual parents’ families. This is a complex and delicate subject that touches on human rights, religion, morality, and tradition, as well as constitutional concepts like equality, autonomy, and human dignity.
The present issue has been in limelight for decades but an extremely important judgment has been rendered in December 2021 by the Court of Justice of the European Union (CJEU) in the case of V.M.A v. Stolichna Obshtina, Rayon ‘Pancharevo’. The facts of this case are that both the parents/mothers of the child are nationals from different countries, living in Spain. One of them is Bulgarian and the other is British. Their offspring was denied a birth certificate in Bulgaria, even though the couple was legally married in Spain, the child possessed a Spanish birth certificate recognizing both mothers and the child of a heterosexual couple in the same conditions would be able to obtain it. “The reasons given for that refusal decision were 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” (Recital 23).
Called upon within the context of a request for a preliminary ruling, the CJEU decided that a parent-child bond developed in one Member State shall be recognized in all other Member States, regardless of the Member State’s stance on same-sex marriage. Hence, the Bulgaria should issue the birth certificate which was a requirement to obtain an identity document).
2. Issues at hand
The Bulgarian government sought validation of its refusal to issue the birth certificate and identity document to the child on three key grounds: a) Bulgaria does not recognise same sex marriage; b) Bulgaria through its refusal is protecting its ‘national identity’; c) and without biological evidence the government cannot recognise the parent child relation. Pursuant to the doubts of the national Court, the CJEU was then asked to address the following issues:
“a. Must Article 20 TFEU and Article 21 TFEU and Articles 7, 24 and 45 of the [Charter] be interpreted as meaning that the Bulgarian administrative authorities to which an application for a document certifying the birth of a child of Bulgarian nationality in another Member State of the [European Union] was submitted, which had been certified by way of a Spanish birth certificate in which two persons of the female sex are registered as mothers without specifying whether one of them, and if so, which of them, is the child’s biological mother, are not permitted to refuse to issue a Bulgarian birth certificate on the grounds that the applicant refuses to state which of them is the child’s biological mother?
b. Must Article 4(2) TEU and Article 9 of the [Charter] be interpreted as meaning that respect for the national identity and constitutional identity of the Member States of the European Union means that those Member States have a broad discretion as regards the rules for establishing parentage? Specifically:
i)Must Article 4(2) TEU be interpreted as allowing Member States to request information on the biological parentage of the child?
ii)Must Article 4(2) TEU in conjunction with Article 7 and Article 24(2) of the Charter be interpreted as meaning that it is essential to strike a balance of interests between, on the one hand, the national identity and constitutional identity of a Member State and, on the other hand, the best interests of the child, having regard to the fact that, at the present time, there is neither a consensus as regards values nor, in legal terms, a consensus about the possibility of registering as parents on a birth certificate persons of the same sex without providing further details of whether one of them, and if so, which of them, is the child’s biological parent? If this question is answered in the affirmative, how could that balance of interests be achieved in concrete terms?
c. Is the answer to Question 1 affected by the legal consequences of [the Withdrawal Agreement] in that one of the mothers listed on the birth certificate issued in another Member State is a United Kingdom national whereas the other mother is a national of an EU Member State, having regard in particular to the fact that the refusal to issue a Bulgarian birth certificate for the child constitutes an obstacle to the issue of an identity document for the child by an EU Member State and, as a result, may impede the unlimited exercise of her rights as [a Union] citizen?
d. If the first question is answered in the affirmative: does EU law, in particular the principle of effectiveness, oblige the competent national authorities to derogate from the model birth certificate [which is one of the model civil status certificates] applicable [at a national level]?”
3. Parenting rights through artificial insemination in the EU and ECHR
Sexual orientation should not be a relevant element when considering a child’s best interests. Prejudice should never get in the way of providing the care and affection that children deserve.
When recognizing same-sex parentage, the question of whether both the same-sex parents shall be considered as joint parents arises. In the case of artificial insemination only one of the parents is biologically connected to the child. In Europe, almost all countries recognize full parental rights of both same-sex parent over the child.
Two supranational frameworks are particularly relevant for considering the rights of same-sex families: EU law and European Convention on Human Rights (ECHR).
Before we go into the CJEU’s judgment we should note that the European Court of Human Rights (ECHR) ruled that under the European Convention for the Protection of Human Rights, a person in a same-sex relationship has no right to adopt a partner’s kid. The judgement came in a case involving a lady in France who had been denied permission to adopt her civil partner’s child. Despite the fact that the two women were raising the child together, the Court of Appeal of Versailles held that joint adoption was only authorized between husband and wife. They filed an application with the Cour de Cassation, on February 21, 2007, but did not pursue the appeal further. Their application would probably have been dismissed because the court had already ruled against the adoption of a partner’s child by the other partner in two cases on February 20, 2007. In both cases, the court forbade the child’s natural mother’s partner from adopting the child, stating that such an adoption would be against the child’s “best interest.” The natural mother’s parental rights would be restricted a result of the adoption, per the court. But later in the years, countries like the Czech Republic, France etc. have overturned through legislation the ban of not allowing same-sex couples to adopt a child.
4. Decision of the CJEU and critical analysis: road to LGBTQI+ inclusion
The CJEU took an opportunity to send out a strong message; it highlighted that Member States are entitled to determine their stance on legality of same sex marriage and parenthood, but this must not serve as a hinderance to the guaranteed Fundamental Rights. Article 21(1) of TFEU encompasses within itself the Right to have a normal family life with family in the host Member States. This cannot be curtailed or hindered simply because one has same sex-parents. This led the Court to the conclusion that, unlike what was stated by Bulgaria, Article 21 TFEU does not undermine national identity or pose any threat to public policy of Member States.
The Court drew an analogy from the Relu Adrian Coman v. Inspector General and Misnisterual case, holding that “such an obligation does 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 as being the child’s parents” (Recital 57). A contrario, Member States cannot restrict rights which the child derives from EU law based on the fact that his/her parents are a same-sex couple.
Since the child had the right to Bulgarian nationality as established under Article 25(1) of the Constitution of Bulgaria the Court considered that she should be provided with her birth certificate (and identification document) in the same manner as she would if her parents were from different sexes. Any conclusion on the contrary would, indeed, be deeply harmful for freedom of movement within the EU.
It is important to note though that from an implementation and impact perspective, the CJEU does not provide an exhaustive list of day-to-day activities fall under the rights established by Article 21 TFEU or any secondary legislation which elaborates on the Right to lead a normal family life. Secondly, the Court also does not elaborate on the parental rights KDK is entitled to as a non-EU citizen but as a spouse of one.
Still, despite the open-endedness of the decision in terms of concrete rights of same-sex parents, the Court provides a remarkable judgment. Firstly, it draws an excellent illustration of conflict between claims of Member States and Union citizens who wish to live and enjoy their freedoms without being restricted in cross-border their cross-border activities. Secondly, the continuity of Coman ruling is upheld as the CJEU takes a strictly functional approach by providing that States are not obliged to recognise same sex marriage but should respect the rights that are granted by EU law and not use the lack of recognition of same-sex marriage as an excuse to deny rights to European Citizens. Lastly, it provides a holistic approach to the right of Union citizens to move and reside freely; while widely exercising rights which a child derives from EU law.
5. Concluding remarks
The CJEU’s ruling is a significant milestone in the recognition of the rights of rainbow families in the EU. While the Court decision is based on a functional approach to freedom of movement it ends up extending the rights of LGBTQI+ citizens. With this judgment it becomes clear that if an individual is a parent in one country, this individual will be a parent in every country and same-sex couple are in the same footing of legal recognition as that of heterosexual couple.
A child is in no way responsible for any difference in scales of values and legislation in society between EU Member States and the CJEU appears to be perfectly aware of this, succeeding in protecting the child’s best interest. With this the judgment established a fragile but adequate balance between national identity, public policy and fundamental rights, while walking one step further in the long path until rainbow families fully enjoy the same rights as heterosexual families.
Picture credits: SatyaPrem.