The Member State of which a child born of same-sex parents is a national must recognise the birth certificate issued by the host Member State in order to allow that child to be able to exercise, together with each parent, his or her right to free movement within the European Union, the Court of Justice of the EU ruled on Tuesday 14 December (Case C-490/20).
A Bulgarian citizen challenged the Bulgarian capital’s refusal to issue a Bulgarian identity document to her Spanish-born daughter in the Sofia Administrative Court. The Bulgarian authorities do not recognise the Spanish birth certificate, which states that the Bulgarian national and her wife are both mothers of the child, without specifying which one is the biological mother.
Bulgaria does not allow same-sex marriage and considers the mention in a birth certificate of two female parents as contrary to public order.
The Court of Justice has been asked to give a preliminary judgment on the basis of the opinion of the Advocate General, who advocated striking a fair balance between the right to free movement and the expression of national identity (see EUROPE 12699/25).
In its judgment, the European Court is of the opinion that Bulgaria should issue an identity card or passport to the child without requiring the prior establishment of a birth certificate by the Bulgarian authorities. According to it, such an obligation derives from Directive 2004/38/EC guaranteeing the right of free movement. In this way, the child will be able to lead a normal family life in both Spain and Bulgaria with the presence of family members by his or her side.
As the Spanish authorities have legally established the existence of a parent-child relationship, whether biological or legal, between the child and both parents of the same sex, a relationship which is attested to in the birth certificate, the two mothers must therefore, in accordance with EU law, be recognised by all the Member States as having the right, as parents of a Union citizen who is a minor and of whom they have custody, to accompany the child when he or she exercises his or her rights. To oppose this would be to violate the Charter of Fundamental Rights (Articles 7 and 24).
Furthermore, the Court considers that Bulgaria should also recognise the birth certificate issued by Spain. Each Member State must respect the Treaty provisions on freedom of movement and residence of European citizens by recognising, for this purpose, the status of persons established in another Member State in accordance with EU law.
Such an obligation, the Court adds, does not disregard national identity or threaten public order. It does not imply that Bulgaria must provide in its national law for same-sex parenthood or that it must recognise, for purposes other than the exercise of the child’s right of free movement, the parent-child relationship between the child and the persons mentioned as his or her parents in the Spanish birth certificate.
See the judgment: https://bit.ly/3oTHRqs (Original version in French by Mathieu Bion)