Since the day they were born, baby Sara and baby Sofia have been waiting to receive an identity document or a passport and are at risk of statelessness. They were born in Spain to parents of other EU nationalities, and their births were registered by the Spanish authorities with the names of their parents. On paper, they are entitled to EU citizenship as they inherited it from their mothers. In practice however, they remain in limbo, unable to cross borders or exercise free movement rights, and at risk of statelessness – simply because their birth certificates contain two parents of the same gender.
Over the last year, we have seen the Court of Justice of the European Union (CJEU) stepping in to protect children of rainbow families born in Europe. We have celebrated two much anticipated decisions that pave the way to address discriminatory policies and practices in European countries that prevent children of LGBTIQ+ parents from accessing birth registration, identity documents, or having their family links recognised in their country of nationality.
Despite setting a positive precedent, the rulings from the CJEU have not been sufficient to change the situation for Sara and Sofia, and in this blog, we will explore why implementation is failing and what could be done to address it.
Obstacles in free movement for children of LGBTIQ+ families
Cases such as those of Sara and Sofia have occurred across several countries in Europe and reflect a wider situation within the EU. Discriminatory laws and practices against LGBTIQ+ parents, a patchwork recognition of non-heteronormative relationships and parentage, and the lack of an European legal framework to protect rainbow families crossing borders has a serious impact on the families and their children. Many rainbow families lose fundamental rights when crossing European borders and their children face a disproportionate risk of becoming stateless. Sara is nearly three years’ old and her mother is Bulgarian, but she is still unable to travel with her parents and visit her extended family because Bulgaria refuses to issue a birth certificate or an identity document. Sofia was born through IVF in Spain and the birth certificate names both her Irish mother and her Polish mother, but Ireland does not recognise the Irish woman as a parent and Poland refused to transcribe a birth certificate that lists two mothers. Azara, another child born in Spain also to a Polish mother, was able to acquire a Polish passport after a year of litigation before the courts, but her legal parents are still not recognised as such. Similar cases have also been reported in other countries, as compiled in a list of cases by NELFA, and researchers including Thomas McGhee have drawn attention to the intersectional dimension and increased vulnerability that LGBTIQ+ parents and their children face, particularly when using assisted reproductive technologies.
CJEU steps in: States must issue identity documents to their nationals
The CJEU issued a judgment in the case of V.M.A. on 14 December 2021 concerning a child born in Spain to a Bulgarian mother and a British mother, where it found that Bulgaria should issue an identity card or a passport to the child without requiring a birth certificate to be drawn up beforehand by its national authorities.
The CJEU confirmed that EU law requires Members States to issue an identity card or passport to their own nationals, stating their nationality. Recalling that in this case the child has Bulgarian nationality by birth, as found by the domestic court, 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. Bulgaria must issue such documents regardless of whether a new birth certificate is drawn up for the child, as these are essential to guarantee that the child obtains evidence of having Bulgarian nationality and enjoy the rights attached to it, including to move and reside freely within the territory of the Member States. While the judgment does not address statelessness issues, as it assumes that the child has Bulgarian nationality, the position taken by the court is crucial in ensuring that children in Europe can acquire identity documents and are not left in limbo.
The ruling also made it clear that the non-recognition of the parent-child relationship in situations involving the exercise of EU free movement rights can amount to a breach of the fundamental rights protected under the EU Charter of Fundamental Rights and the UN Convention on the Rights of the Child, particularly the right to respect for private and family life and children’s rights.
Importantly, the CJEU ruled that EU Member States, and in this case the Bulgarian authorities, could not justify their refusal to issue an identity document to the child in a rainbow family, or to recognise that parent-child relationship, on the grounds of public policy and the need to protect the national identity. The CJEU reaffirmed the findings made in V.M.A. in another case related to Poland, Rzecznik Praw Obywatelskich, in the reasoned order delivered on 24 June 2022.
Challenges with implementation
While the CJEU was clear in both cases, requiring Bulgaria and Poland to provide the girls with an identity document specifying both parents (as it is in their Spanish birth certificates), the authorities in the two countries are yet to implement the rulings and issuing documents to the children.
Sofia was granted Spanish nationality and an identity document in March 2019, under a provision in Spanish law that allows stateless children born on its territory to acquire Spanish nationality. Although Sofia is no longer at risk of statelessness as she was granted Spanish nationality, she is still awaiting her Polish documents since Polish authorities refuse to indicate both parents in the PESEL register (the Common Electronic System of Population Register) and to acquire a PESEL number, which is the national identification number used in Poland and a prerequisite for obtaining Polish nationality. The case is pending before the Supreme Administrative Court.
In the meantime, Sara is still at risk of statelessness, waiting for the Bulgarian authorities to grant her ID documents that would confirm her nationality and parental links. Until then, she is unable to provide evidence of having Bulgarian nationality and to exercise the rights derived from it. The immediate aftermath of the CJEU judgment seemed promising, but this delay in granting Sara’s identity documents fails to comply with the decision of the EU’s top court. In May 2022, the Administrative Court of the City of Sofia (the referring court to CJEU) applied the CJEU ruling and ordered the Sofia municipality to issue Sara a birth certificate with both mothers listed as parents. However, the Sofia municipality appealed this decision on the grounds that it is against the Bulgarian public order, a notion clearly rebutted by CJEU.
With the hearing by the Bulgarian Supreme Administrative Court approaching next week, on 21 November, all eyes are on this case to establish the fate of baby Sara and whether her parents will be legally recognised and granted proof of her nationality. It is unconceivable that Europe allows children born to EU citizens to be stateless or at risk of statelessness and have their basic rights violated just because they are born to a family of same-sex parents.
ILGA-Europe and NELFA have increasingly focused on impact litigation as a means for advancing protections of the human rights of LGBTIQ+ people at the EU level, just as ENS has sought to address statelessness through the courts. However, even when a judgment with a positive outcome or setting a positive precedent has been issued, impact litigation alone may be insufficient when it comes to effecting real change, as judgments or decisions must be properly implemented to achieve their full effect. Both administrative authorities and national courts play a key role in aligning domestic practice with the regional and international human rights framework.
Where administrative authorities and national courts fail to ensure implementation, the European Commission, as the guardian of the EU treaties, has the important role to monitor the application of EU law and ensure all EU citizens enjoy their rights equally.
In cases such as those of Sofia and Sara, the issue seems to be a clear problem of implementation rather than lack of applicable legislation and safeguards to prevent statelessness. It is therefore particularly important to continue doing advocacy and lobbying in conjunction with litigation, particularly where States are reluctant to implement regional or international judgments.
Upholding commitments to equality for rainbow families
The European Parliament has reiterated the need to protect rainbow families and ensure full freedom of movement in a number of resolutions. Also, the European Commission is now working towards upholding the rights of children of rainbow families and their parents, including by setting out the protection of the rights of rainbow families as one of four key pillars for action in its five-year LGBTIQ Equality Strategy. As President von der Leyen stated, “if one is parent in one country, one is parent in every country”.
As part of the strategy, the European Commission is starting a legislative initiative to establish the mutual recognition of parenthood between EU Member States, and to explore possible measures to support the mutual recognition of same-gender spouses and registered partners’ legal status in cross-border situations. ILGA and ENS have been continuously engaging with the European Commission as part of a consultation for this initiative, which would help secure equality in free movement for rainbow families throughout the EU. It would also minimise issues with recognition of civil status, birth registration, the legal parentage of children, and any related consequences on the child’s right to a nationality or their enjoyment of fundamental rights.
In all issues concerning children, decision and policy makers should maintain a child-centred approach and respect the primacy of the best interests of the child, regardless of their parents’ status or their sexual and/or gender identity. This is also an important reminder of the need to advocate for an intersectional feminist and LGBTI inclusive approach to statelessness activism and build coalitions with civil society actors working on intersecting issues such as identity rights, children’s rights, and LGBTIQ+ rights, to protect rainbow families in Europe.