Patrícia Cabral, Legal Policy Officer, European Network on Statelessness*

The recognition of LGBTQ* rights, including same-sex partnerships or marriages and legal parentage for same-sex couples, varies significantly across Europe. This inconsistent landscape presents challenges for rainbow families (families with at least one LGBTQ* parent), particularly regarding the legal recognition of their civil status, birth registration processes, and access to birth certificates. Consequently, some children in these families face statelessness or a heightened risk of it.

These instances, observed in several European countries, highlight a concerning trend within the EU where discriminatory laws and practices based on sexual orientation affect a child’s fundamental right to a nationality and their access to EU citizenship. The Court of Justice of the European Union (CJEU) now has a crucial opportunity to address this pressing issue in a pending case involving a child of a same-sex couple in Spain.

The case before the CJEU

The case, V.M.A. v Stolichna Obsthina, Rayon ‘Pancharevo’ (C-490/20), revolves around a child born in Spain to a British mother and a Bulgarian mother legally married in the UK before the child’s birth. Spain issued a birth certificate acknowledging both mothers as parents without specifying the biological mother. However, when the Bulgarian mother sought a birth certificate in Bulgaria, the authorities refused, citing the lack of information about the biological mother and arguing that recognizing two female parents contradicts Bulgarian public policy, which prohibits same-sex marriage.

The domestic court has referred several questions to the CJEU, including whether Bulgarian authorities can demand biological parentage information to issue a birth certificate. The CJEU is also tasked with finding a balance between respecting Member States’ national and constitutional identity (Article 4(2) TEU) and upholding the right to private and family life and the best interests of the child (Articles 7 and 24(2) of the EU Charter of Fundamental Rights).

While acknowledging that the lack of a birth certificate hinders the child’s access to identity documents and EU citizenship rights, the domestic court’s request for a preliminary ruling doesn’t explicitly address the potential impact on the child’s right to nationality or the risk of statelessness.

The domestic court initially assumed the child would have British nationality, considering the implications of Brexit on EU citizenship rights. However, new evidence reveals the UK denied the child citizenship based on regulations that prevent parents who acquired British nationality by descent from passing it on to children born outside the UK. Since neither mother holds Spanish nationality, despite one being born in Spain, the child did not acquire it at birth. Acquiring Spanish nationality would require invoking a legal safeguard ensuring nationality for children born in Spain who would otherwise be stateless. However, this necessitates proving the child cannot acquire any other nationality. The Bulgarian authorities’ refusal to issue identity documents, crucial for demonstrating Bulgarian nationality, contradicts Bulgarian law, which seemingly grants the child citizenship.

This situation presents a paradoxical challenge as the child needs to prove their inability to acquire another nationality to benefit from the Spanish safeguard. Had the child been born in a country without such a safeguard, they would remain stateless due to Bulgaria’s discriminatory birth registration practices. With confirmation from the UK and Spain that the child holds neither nationality, the child is currently stateless or, at minimum, at risk of statelessness. While the domestic court’s failure to address the impact on the child’s right to a nationality is regrettable, the CJEU retains the authority to reframe the questions and provide a comprehensive interpretation of EU law relevant to the case, encompassing access to EU citizenship and statelessness. This is a pivotal issue the CJEU must address.

The domestic court questions the extent of Member States’ discretion regarding parentage establishment rules. However, the central issue is not establishing parentage but rather Bulgaria’s recognition of the legal parentage already established in Spain. CJEU and European Court of Human Rights (ECtHR) case law suggests that Member States have less discretion when recognizing parentage, especially when it impacts a child’s best interests and identity, compared to establishing parentage. It remains unclear whether Bulgarian authorities refuse to acknowledge the legal parentage evidenced by the Spanish birth certificate or if they acknowledge the parentage but refuse to issue a birth certificate. Regardless of their stance, their refusal to issue a birth certificate severely impacts the child’s rights, effectively denying their Bulgarian nationality and, consequently, access to EU citizenship.

Discriminatory birth registration practices negatively impact the fulfilment of children’s rights

Birth registration, the official recording of a birth, is a fundamental right. It provides crucial evidence of a child’s legal identity, family ties, and place of birth, often resulting in a birth certificate that is critical for establishing nationality. Nationality is typically acquired through parents (jus sanguinis), place of birth (jus soli), or a combination of both.

While not synonymous with statelessness, the lack of birth registration increases a child’s vulnerability to becoming stateless. Without a registered birth record or a birth certificate, establishing links to a state becomes significantly difficult, potentially leading to statelessness. Children facing such obstacles encounter severe difficulties in exercising their rights as enshrined in international law, including the 1961 Convention on the Reduction of Statelessness and the 1989 Convention on the Rights of the Child (CRC). These rights encompass access to essential services like education, healthcare, and social security. For children born to EU citizens, lack of birth registration and its subsequent impact on acquiring nationality hinder the exercise of their rights as EU citizens, including freedom of movement.

Leaving a child stateless, even temporarily, is never in their best interest. UNHCR, in its Guidelines on Statelessness No. 4, emphasizes that Articles 3 and 7 of the CRC dictate that a child must acquire a nationality at birth or shortly thereafter, preventing prolonged statelessness.

The UN Human Rights Committee, in its concluding observations to the Bulgarian government in 2018 (CCPR/C/BGR/CO/4), expressed concerns about same-sex couples married abroad being denied civil registration for themselves and their children. They recommended eliminating discrimination based on sexual orientation or gender identity. Such discriminatory practices against same-sex couples often have severe consequences for a child’s right to nationality, potentially resulting in statelessness and further rights violations. This is evident in the current case, where Bulgarian authorities refuse to issue a birth certificate based on the parents’ sexual orientation.

Paradoxically, the Bulgarian court seems to acknowledge the legal parentage between the child and the Bulgarian mother, evidenced by the Spanish birth certificate, by concluding that the child is Bulgarian by virtue of having a Bulgarian mother. However, it’s crucial to note that nationality cannot be solely established in court, and practical application of the law needs consideration. Denying the issuance of a birth certificate, which serves as evidence of the legal parentage, effectively denies the child access to identity documents. These documents are essential for proving Bulgarian nationality and exercising the rights associated with it, including EU citizenship.

The refusal to issue a birth certificate, therefore, constitutes direct discrimination based on birth, sexual orientation, and gender, as an opposite-sex couple would not face this obstacle. Requesting biological parentage information in this case is unjustified and violates Article 21(1) of the EU Charter of Fundamental Rights (CFR).

Discrimination based on the parents’ sexual orientation, particularly its impact on a child’s nationality, contradicts the Convention on the Rights of the Child, ratified by all EU Member States. This convention guarantees every child the right to be registered immediately after birth and acquire a nationality without discrimination (Articles 2 and 7 CRC).

Denial of a child’s nationality in practice, despite entitlement in the law, leads to statelessness

The 1954 Convention relating to the Status of Stateless Persons defines a stateless person as someone not considered a national by any state under its law. UNHCR interprets this as a matter of both fact and law, meaning statelessness is determined not solely by the legal text but also by how authorities apply the law in practice. UNHCR differentiates “under the operation of its law” from “by operation of law.” The latter implies automatic acquisition of nationality, in contrast to non-automatic methods like naturalization.

The Bulgarian court argues that the child’s right to nationality is not in question because they are a “Bulgarian national by operation of law.” While suggesting automatic acquisition of nationality under Bulgarian law, it’s important to remember that nationality cannot be solely determined by the court, and the practical application of the law requires consideration. UNHCR’s guidance highlights that determining nationality based on a state’s law and practice necessitates evaluating evidence from competent authorities. When nationality is acquired automatically, birth registration typically serves as proof. By refusing to issue a birth certificate, the authorities deny the child access to identity documents crucial for proving Bulgarian nationality and fully exercising their right to a nationality and its associated benefits. This denial extends to EU citizenship, which the CJEU recognizes as the “fundamental status of nationals of the Member States.”

UNHCR notes that if competent authorities treat an individual as a non-national despite seemingly meeting the criteria for automatic nationality acquisition, as in this case where access to identity documents is obstructed, it is their position, not just the legal text, that determines whether a state considers an individual a national.

Denial of EU citizenship and related rights

The refusal to issue a birth certificate, effectively a denial of Bulgarian nationality, renders the child stateless. This directly impacts their access to EU citizenship and its associated rights. The CJEU, in the Zambrano case, asserted that Article 20 TFEU prohibits national measures that deprive EU citizens of genuinely enjoying their rights as EU citizens. The inability to obtain a birth certificate prevents the child from proving Bulgarian nationality, and without entitlement to another EU Member State nationality, they are denied EU citizenship and the associated rights.

Furthermore, the CJEU emphasizes that using public policy to justify exceptions to fundamental freedoms requires strict interpretation. In the Coman ruling, the CJEU stated that recognizing same-sex marriages to grant residency rights to a third-country national does not undermine a Member State’s national identity (Article 4(2) TEU) nor threaten public policy. While Member States can decide whether to legalize same-sex marriage, they cannot impose measures hindering the exercise of free movement rights, and such measures must comply with the EU Charter of Fundamental Rights. Although Coman involved residency rights for a third-country national married to an EU citizen, the principles outlined could apply to the present case, V.M.A. v Stolichna Obsthina.

Upholding EU commitments to equality for rainbow families

The EU has made significant progress in recognizing and upholding the rights of children and parents in rainbow families. A notable example is the recent five-year LGBTIQ Equality Strategy, which prioritizes protecting the rights of rainbow families as a key action point from 2020 to 2025. As part of this strategy, the European Commission plans to propose legislation for mutual recognition of parenthood and explore measures supporting the cross-border recognition of same-sex partnerships between Member States. This initiative builds upon the Commission’s ongoing dialogue with Member States to address obstacles related to recognizing birth certificates of children born to same-sex couples in another Member State.

Furthermore, to enhance legal certainty for EU citizens exercising their free movement rights and ensure consistent application of free movement laws across the EU, the European Commission, as outlined in the LGBTIQ Equality Strategy and the EU Citizenship Report 2020, has committed to revising the 2009 guidelines on free movement by 2022. This revision aims to reflect the diversity of families and support all families, including rainbow families, in exercising their right to free movement.

These actions demonstrate the commitment of both the EU and its Member States to eliminating barriers to birth registration, ensuring the recognition of birth certificates for children of rainbow families, acknowledging legal parentage, and addressing the implications for a child’s right to nationality.

The EU plans to publish a 2021-24 strategy on the rights of the child, providing a comprehensive framework for promoting and protecting children’s rights, including recommendations for EU institutions, Member States, and stakeholders. This presents another opportunity for the EU to outline measures protecting the rights of children in rainbow families, including their right to a nationality.

The role of the courts in respecting the best interests of the child and upholding the child’s right to a nationality

Nationality law generally falls under Member States’ jurisdiction. However, as emphasized by the CJEU in Rottman, Member States must consider EU law, including upholding EU values and rights enshrined in the EU Charter of Fundamental Rights, when exercising their powers concerning nationality acquisition and loss.

Under Article 53, the protection afforded by the EU Charter of Fundamental Rights must be at least equivalent to that provided by the European Convention on Human Rights (ECHR) and international law, including the CRC. Therefore, it is crucial for the CJEU to consider international jurisprudence on the right to respect for private and family life, the right to a nationality, the principle of non-discrimination, and the best interests of the child, all in line with international human rights law.

ECtHR case law confirms that recognizing parentage and acquiring nationality fall under the right to respect for private and family life (protected by Article 8 ECHR and Article 7 CFR). In Mennesson, the ECtHR stressed that respecting private life includes the ability to establish one’s identity, which encompasses the legal parent-child relationship, emphasizing a child’s right to legal identity.

A child’s right to a nationality is further protected under Article 15 UDHR, Article 24(2) ICCPR, and Articles 3 and 7 of the CRC. The UN Human Rights Committee recently found that failing to recognize statelessness and assess a child’s nationality violated the right to a nationality (Zhao v Netherlands). Furthermore, in their General Comment No 14, the Committee on the Rights of the Child acknowledges that a child’s best interests might conflict with other interests, including public interest. They emphasize that authorities must prioritize a child’s best interests above all other considerations, particularly when an action directly impacts the child, as in the present case.

Courts play a critical role in interpreting national laws to align domestic practices with regional and international human rights frameworks. While domestic courts must uphold international obligations, regional courts bear the responsibility of ensuring that differing national legal systems do not compromise fundamental rights or a child’s best interests. Cases similar to the one before the CJEU, where children of same-sex couples experience discrimination in civil status document recognition and access to birth registration and identity documents, have been reported across Europe, including in Poland, Bulgaria, and Ireland. Applying nationality laws in a non-discriminatory way, upholding fundamental rights, and ensuring respect for EU citizenship is crucial. Currently, children in the EU are born stateless or at risk of statelessness and denied EU citizenship solely due to prejudice against their parents’ sexual orientation. Therefore, the CJEU has a vital role in ensuring the consistent implementation of international standards on statelessness and human rights law across all EU Member States, striving for a Europe where no child is born stateless.

*Reblogged from the European Network on Statelessness blog

Barnard & Peers: chapter 13

Photo credit: Laurent Verdier, via Wikimedia Commons