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22nd Jan 2022

EU top court: Same-sex parents with children are 'family'

  • The daughter of a same-sex couple was at risk of becoming statelessness (Photo: London Scout)
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In a landmark ruling, the European Court of Justice on Tuesday (14 December) said same-sex parents and their children should be recognised as a family in all EU member states.

The ECJ said that if one EU country acknowledges the parental relationship with a child, then every member state should do the same in order to guarantee the child's right to free movement.

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The specific case concerns Sara, who was born in Spain in 2019, and has two mothers.

Bulgarian Kalina Ivanova and British Gibraltar-born Jane Jones are both registered as the mothers of Sara in Spain.

Spanish and British citizenship laws did not allow for Sara to be granted either Spanish or UK citizenship, therefore the couple requested a Bulgarian one.

The case came before the highest EU court after Bulgarian authorities refused to give a birth certificate to the new-born girl - on the basis that a child cannot have two mothers. Bulgaria also does not recognise same-sex marriages.

The two women declined to make public which one of them gave birth to the girl, according to AFP.

The child was at risk of being stateless, with no access to citizenship or personal legal documents, unable to leave her family's country of residence, or receive education, healthcare and social security.

The Bulgarian mother took the case to Sofia's Administrative Court, which earlier this year asked to consult the Luxembourg-based EU court.

The ECJ ruled that Spain had already established the child-parent relationship through a birth certificate and Bulgaria should issue a passport based on that.

"The member states must recognise that parent-child relationship in order to enable S.D.K.A. [Sara] to exercise, with each of her parents, her right of free movement. […] both parents must have a document which enables them to travel with that child," the court said.

""The rights which nationals of member states enjoy under Article21(1) TFEU [EU treaty] include the right to lead a normal family life, together with their family members, both in their host member state and in the member state of which they are nationals when they return to the territory of that member state," the court argued.

The court added it does not mean that all EU countries must recognise same-sex couples in national law, but that the children's right to free movement should not be hindered because a member state does not recognise same-sex parents.

"A person's status is a matter which falls within the competence of the member states, which are free to decide whether or not to allow marriage and parenthood for persons of the same sex under their national law," the court said.

It added, however, that each EU country "must comply with EU law", especially with citizens' freedom of movement and of residence, "by recognising, for that purpose, the civil status of persons that has been established in another member state in accordance with the law of that other member state".

The Sofia court will now have to issue its own decision in line with the ECJ ruling before Sara can leave Spain.

In the EU, 16 countries have legal same-sex marriage. Globally, it is around 30 nations.

"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," said Arpi Avetisyan of Europe's LGBTIQ rights group ILGA.

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