The top court of the European Union (EU) has ruled that if one EU member nation recognizes the relationship between a child and its same-sex parents, all member nations must do so, in order to guarantee the child’s right to freedom of movement.
Two-year-old Sara was born in Spain to a Bulgarian-born mother and a Gibraltar-born one. Spanish law said that since neither mother was a Spanish citizen, the child could not become a Spanish citizen. The Gibraltar-born mother had U.K. citizenship, but since she was not born in the U.K. (instead acquiring her citizenship solely by descent from her parents), she could not pass U.K. citizenship to her child. Those were obstacles that would apply equally to same- and different-sex couples.
The women then tried to get Bulgaria to recognize the child. The Bulgarian government refused, however, saying that a child cannot have two mothers. This reasoning was pure homophobia. Sara was left without citizenship of any kind, making it impossible for her to travel outside Spain—or to access education, healthcare, and social security benefits in Spain that require citizenship documentation.
On December 14, the Court of Justice of the European Union (CJEU) ruled that because Spain “lawfully established that there is a parent-child relationship, biological or legal,” between Sara and her two parents (even though it could not grant her citizenship), “Member States must recognise that parent-child relationship in order to enable [Sara] to exercise, with each of her parents, her right of free movement” under the EU Charter of Fundamental Rights. The ruling thus required the Bulgarian authorities to issue an identity card or a passport to Sara.
Issuing such documentation and recognizing the parent-child relationship “does not undermine the national identity or pose a threat to the public policy of that Member State,” the court added. Indeed, the ruling does not require member nations to provide in their national law for the parenthood of same-sex couples, or to recognize a parent-child relationship “for purposes other than the exercise of the rights [such as freedom of movement] which the child derives from EU law.” Still, this is a big win and a big step forward. Currently, eight of the 27 EU member states automatically recognize same-sex co-parents, according to ILGA-Europe. Thirteen allow for joint adoption by same-sex couples; 14 permit second-parent (confirmatory) adoption.
Sara’s parents said in a press release from ILGA-Europe, which provided strategic legal support for her case, “We are thrilled about the decision and cannot wait to get Sara her documentation and finally be able to see our families after more than two years. It is important for us to be a family, not only in Spain but in any country in Europe and finally it might happen. This is a long-awaited step ahead for us but also a huge step for all LGBT families in Bulgaria and Europe.”
Arpi Avetisyan, head of litigation at ILGA-Europe, said, “This is a true testament to the EU being a union of equality and we look forward to seeing rainbow families enjoying their right to freedom of movement and other fundamental rights on equal footing to anyone else. It is important that the judgment is implemented imminently, not only for baby Sara and her family, but also for other families facing similar struggles across the EU.”
