The Statelessness Case Law Database: LGBTQ+ families, surrogacy and the legal identity of unsanctioned babies

Katja Swider ENS Member, Assistant Professor of Migration Law at Vrije Universiteit Amsterdam
/ 7 mins read

The new ENS Statelessness Case Law Database offers a lens through which we can observe how European laws deal with the reality of statelessness. In this piece I specifically reflect on cases involving surrogacy and LGBTQ+ families, where due to the construction of legal parenthood within specific jurisdictions, the children born in such circumstances were at risk of statelessness.

 LGBTQ+ families, surrogacy and the legal identity of unsanctioned babies

In July this year ENS launched its Statelessness Case Law Database – a fantastic tool for understanding how European courts grapple with stateless realities in a variety of factual and legal contexts. The database already contains nearly 200 judgments from 30 jurisdictions, and continues to grow. 

European judges are being confronted with a wide variety of statelessness issues, ranging from deprivation of nationality, to immigration statuses, state succession and detention. The role of judges can be particularly decisive in changing the course of policy and legislation when certain interpretations of the law lead to absurd or unintended outcomes. Here, I reflect on several judgments contained in the Database that involve children who arrived into this world as a result of arrangements, unions, or technologies that are not recognised or illegal in the relevant jurisdiction – such as LGBTQ+ families, reproductive technologies and surrogacy. The cases show how a risk of statelessness for those children arises at the administrative level, but is successfully mitigated through litigation.  

Since the dawn of times law has been attempting, and ultimately often failing, to control how people reproduce. Unsanctioned babies (for example, born out of wedlock) have historically faced persecution, which was often sustained if not induced by law. Nowadays the global commitment to children’s rights has significantly reduced discriminatory practices against children based on the circumstances of their birth or identity of their parents. However, access to nationality and legal identity for children born and raised in LGBTQ+ families and/or with help of surrogacy or reproductive technologies is still not trivial in some European states, especially in cases that involve a cross-border element. 

Wherever one stands on reproductive technologies and unconventional families, penalising children born under the circumstances they do not choose is indisputably wrong. This is often reflected in the reasoning of judges, who attempt to find a way to interpret the relevant laws so as to ensure children’s access to their legal identity and nationality.  

One case in the Statelessness Litigation Database involved a baby born in 2016 to a Polish national, with the help of a surrogacy arrangement with a woman in the US. While the US birth certificate of the baby indicated the Polish father as the sole parent, and Polish nationality law automatically grants Polish nationality to anyone whose either parent is a Polish national, the authorities refused to issue a Polish identity document to the baby, due to surrogacy being illegal in Poland. The authorities were concerned that giving any legal validity to a birth certificate that clearly points to surrogacy would amount to legitimising surrogacy in Poland. The Supreme Administrative Court of Poland disagreed, ordering the authorities to acknowledge the baby’s legal existence and his Polish nationality, and reassuring the authorities that this would not amount to legalising surrogacy in Poland. This court has also produced a chain of other fascinating cases on access to Polish nationality by children in LGBTQ+ families with a similar line of reasoning – prioritising the children’s right to a legal identity and nationality over other public policy objectives.

Another interesting case of unauthorised babies in the Case Law Database is the case of twins born in 2010 in Ukraine to Mr. and Mrs. L – a married couple of Austrian nationals. The authorities suspected that a surrogacy arrangement was involved in the birth of the twins, which is illegal in Austria, and requested Mrs L to undergo a medical examination which would establish whether she has recently given birth, in order to refute the suspicion of surrogacy. The L couple consistently denied the allegations of surrogacy, but Mrs L refused to be medically examined. Even though Mr and Mrs L were confirmed to be the genetic parents of the twins, and were recognised by the Austrian social services as their only factual carers, the authorities denied the twins Austrian nationality. Unable to obtain travel documents for the stateless children, the family was stranded in Ukraine for over 2 years. While the Constitutional Court of Austria accepted the authorities’ perspective that surrogacy was highly likely involved in the birth of the twins, it invoked the best interests of the children and their right to private and family life to find the unconstitutionality of the outcome of denying them access to the Austrian nationality. 

Cases on the legal identity of unsanctioned children are making their way to the European regional courts, which also seem to emphasise the best interests of the child over other norms and values in the construction of legal parenthood. In Mennesson v. France, the ECHR found a violation of Article 8 rights of children born in surrogacy arrangements abroad if they were unable to access the nationality of the factual parents due to the legal parenthood not being recognised. The Court of Justice of the European Union (CJEU) is due to rule in V.M.A. v Stolichna Obsthina case about the legal identity and access to European Citizenship of a baby born in Spain to a British and a Bulgarian mother. The dispute arose when Bulgarian authorities refused to issue a birth certificate that lists two mothers as parents. They wanted to know which of the mothers is the birth mother in order to exclude the other from the Bulgarian birth certificate. The Spanish birth certificate, however, did not reveal this information, and the mothers also refused to share these details. The CJEU will now need to consider whether the value of ‘traditional family’, which according to Bulgarian authorities is part of Bulgarian national identity that is protected under the EU constitutional law, outweighs the importance of the baby’s access to legal identity and EU citizenship.

The Opinion of the Advocate General in this case concludes that while EU law obliges Bulgaria to recognise legal parenthood established in Spain to the extent needed for the family to enjoy free movement and family life in the EU, the appeal to traditional family as a nationality identity “may justify” Bulgaria’s refusal to issue the child a Bulgarian birth certificate and recognise her as a Bulgarian national. Thus, while the child’s right to family life in the EU is prioritised over other values, her rights to an independent legal identity and nationality receive less attention from the Advocate General. It remains to be seen whether the CJEU will follow the Advocate General’s Opinion, or perhaps take a stronger stance on the LGBTQ+ children’s rights to legal identity and nationality. The issue of statelessness could be problematised more explicitly, for example. While Spain promised a Spanish nationality to this child if neither Bulgaria nor the UK would accept her as a national, this does not address the fact that a baby born in the EU to a parent who is an EU citizen, and lives in the EU, has not had a clear nationality status for at least two years now. Moreover, if only the UK recognises the baby as its citizen, the baby will not acquire EU citizenship. Could the children’s rights to EU citizenship be under certain circumstances prioritised over a Member State’s constitutional value of traditional family?

It is interesting to note that in both Austrian and Polish cases discussed above, the genetic parents were denied the right to pass on their nationality to their children. This fact illustrates that the laws used as basis for those rather conservative administrative decisions were not purely concerned with protecting genetic parenthood. This has not been the case in the past either – single women who have given birth were for a long time denied legal motherhood in Europe - an unmarried woman could not legally be a mother. Legal parenthood has always been about the reinforcement of various societal norms about reproduction and family composition, biology and genetics merely playing a marginal role of opportunistic arguments. Therefore, the development of technologies that make the biological and genetic realities of parenthood somewhat more complex, as well as acceptance of a wider variety of family models, should not in principle affect the law’s ability to construct parenthood. In line with this insight, European courts are developing a line of reasoning that while there may be valid considerations to discourage certain reproductive practices, it should never take the form of denying children who have already been born access to a legal identity and nationality. There is nothing ethical or “natural” about discriminating against children born out of surrogacy arrangements and/or with the help of reproductive technologies and/or growing up in LGBTQ+ families. 

The cases discussed in this blog depict administrative authorities using the construction of legal parenthood that reinforces control over acceptable forms of reproduction and family life, while the judges can be seen more willing to construct legal parenthood so as to ensure children’s access to legal identity and nationality. The European courts seem to agree that while the mere existence of those children may be in defiance of the relevant laws, children do not choose the circumstances of their birth and upbringing, and therefore denying them access to legal identity and a nationality is not acceptable – neither as a deterrent for the parents, nor as a price to pay for reinforcing the illegality of specific types of families or reproductive practices.

Related topics