Every year the ILGA-Europe Rainbow Map shows that the rights of lesbian, gay, bisexual, trans, intersex and queer people (LGBTIQ*) are still not equally respected in the European Union. This gap also affects children of LGBTIQ* parents and while many (mostly Western) countries have permanently changed their laws and regulations within the last two decades to adequately recognise LGBTIQ* people and their families, there are still many legal gaps to fill.
By now, 14 out of 28 EU countries have introduced marriage equality. A further eight countries offer different forms of registered partnerships. However, six EU Member States – Bulgaria, Lithuania, Latvia, Poland, Romania and Slovakia –still don’t provide any kind of recognition for LGBTIQ* couples. Of course, restrictions in this area impact the children of LGBTIQ* parents: whenever their parents can’t get married or enter into a civil union, they might also be denied tax credits, inheritance rights, access to healthcare and social security entitlements such as parental leave on an equal footing with their peers in different-sex families.
One additional area that remains unresolved and has a huge impact is the recognition of legal familial ties between children and their non-biological LGBTIQ* parents. Only 18 EU countries give such parents corresponding rights, mostly through second-parent adoption or a similar instrument. A smaller number of EU countries allow joint parenthood for same-sex (mostly lesbian) couples from birth: Austria, Belgium, Denmark, Finland, Malta, the Netherlands, Portugal, Slovenia, Spain, Sweden and UK. Ireland and France are likely to follow suit in 2020.
However, the regulations between countries vary widely, and rainbow families can often fall victim to these legal disparities, especially when parents are from different countries or they have moved to another member state exercising their freedom of movement rights. As a result, children of LGBTIQ* parents are often put in legal limbo, even when all countries involved seem to grant a lot of LGBTIQ* rights.
One such example is the recent case of a lesbian couple and their 16-month-old baby Sofia. Born in Spain into a rainbow family of two mums, one Irish, one Polish, Sofia has faced barriers to acquiring the nationality of either country. Living and working in the Irish countryside, Kashka and Sinead decided to go to Spain to give birth through in-vitro-fertilisation, because of the uncomplicated possibility for both (biological and social) mothers to be named on a Spanish birth certificate. At that time, they didn’t expect major problems, and Ireland had just announced it would finally introduce a co-parent recognition law for lesbian couples. But when Sofia was born, the corresponding bill hadn’t yet come into force and the request to the Irish authorities to transcribe the Spanish birth certificate with the two mothers named on it, was officially rejected. Following a request to the Polish authorities, after months of delays, Poland, which doesn’t recognise lesbian couples, also refused to transcribe their daughter’s birth certificate. In both countries, the transcription is a necessary step to obtaining a passport and any documentation for the child, which means that Sofia was effectively refused proof of nationality of both Ireland and Poland, and left at risk of statelessness.
Their final hope was to apply for Sofia to be recognised as a Spanish national under a safeguard in Spanish law that allows children born on the territory who would otherwise be stateless to acquire Spanish nationality at birth. Kashka and Sinead moved to Valencia and hired a lawyer who submitted all the required papers in May 2019. Unfortunately, they were told that the Spanish authorities may take over a year (or based on anecdotal evidence even longer) to process their request. In the meantime, their daughter Sofia remains without any documentary proof of any nationality, at risk of statelessness. She has not been recognised as a national by any country, she has no ID, and no insurance. She is undocumented in Spain, with the family unable to leave the country legally and return to Ireland.
The Network of LGBTIQ* Families Associations (NELFA) has known of similar cases for several years. In most cases, issues arise from the failure of authorities to recognise birth certificates, which means that legal familial ties that were already established elsewhere are suspended by crossing borders from one EU member state to another. Children on paper lose at least one parent and therefore a range of connected rights. Rainbow families must fight lengthy court battles to be recognised. This causes a lot of uncertainty, stress and is contrary to the best interests of the child.
Unfortunately, the European Union has only shared competence in family law and can’t force states to recognise the rights of LGBTIQ* parents and their children. One solution though could be mutual recognition of the content of civil documents (such as birth and marriage certificates) between Member States. But given the political situation, such efforts would likely end up being blocked by one of the states in the Council. That’s why past initiatives by the European Parliament have been left stranded in the Commission without further development. Strategic litigation (at the European Court of Human Rights or the European Court of Justice) is therefore one of the few remaining routes to push for equal rights and case-law at national and European level. However, this will take time and effort.
In the meantime, Kashka, Sinead and Sofia can’t wait. Many other children in a similar situation need a solution now. Network of European LGBTIQ* Families Associations (NELFA) are calling on EU governments to (as a minimum) recognise familial ties that were already established in another EU state. Rainbow families are a social reality. They exist everywhere, and all children need full protection, including their right to a nationality, regardless of the sexual orientation and gender identity of their parents.