CJEU asked to rule on recognition of birth certificate of child born to same-sex couple as proof for nationality

David de Groot (EU-CITZEN). You can read a full report on the case: EU law and the mutual recognition of parenthood between Member States : the case of V.M.A. v Stolichna Obsthina.

On 2 October 2020, the Administrative Court of the City of Sofia in Bulgaria requested a preliminary ruling from the Court of Justice of the European Union (CJEU) in the case C-490/20 V.M.A. v. Stolichna Obsthina, Rayon ‘Pancharevo’ (Sofia municipality, ‘Pancharevo’ district), concerning the recognition of a birth certificate mentioning two women as parents in order to get proof of nationality.

V.M.A. is a Bulgarian national married to a UK national, K.D.K. They reside in Spain. On 8 December 2019, a child, S.D.K.A., was born to them and a Spanish birth certificate was issued, mentioning both V.M.A. and K.D.K. as ‘mother’.

V.M.A. asked the authorities of the Sofia municipality, Pancharevo district, to issue a birth certificate for the child, which is required for getting a national ID document. The authorities requested V.M.A. to produce, within seven days, evidence of the child’s parentage with respect to the biological mother. V.M.A. responded that she could not provide that information and that she was not required to do so in accordance with Bulgarian law. Subsequently, the authorities refused to issue the birth certificate. It is against this decision that V.M.A. brought proceedings.

The case has one major issue, however: it is completely unclear what is at stake, due to many contradictory elements.

On the one hand, the referring court states that the parentage cannot be recognised; on the other hand, the court states that the child is a Bulgarian national, which is impossible if the state has not previously recognised the parentage, because the only manner the child could acquire Bulgarian nationality is iure sanguinis a mater.

An additional confusing element in the case is the fact that the refusal to register S.D.K.A. was based on the fact that V.M.A. did not provide information as to the identity of the ‘biological mother’, seeming to imply that this means the woman who gave birth of the child, while justifying this request with the surrogacy case law of the ECtHR where a request for the ‘biological truth’ can made. There however, ‘biological parent’ means the person whose gametes have been used for the conception of the child. From further analysis in the case, it has also become clear that this request is – next to direct discrimination based on sex and sexual orientation – also completely unfounded.

The manner in which the questions are phrased and the unclarity of terminology used in the preliminary reference (e.g. ‘biological mother’ which has more than one meaning), added to the fact that it is unclear whether the parentage has been recognised or not and that very relevant articles of the CFR are not mentioned at all, make it imperative that the CJEU clearly establishes what the exact (legal) facts of the case are and rephrases the questions.

There is no national measure that has a greater effect of depriving citizens of the Union of the genuine enjoyment of the substance of rights conferred by virtue of their status as citizens of the Union than the refusal by the authorities to acknowledge that the status of Union citizen itself has been acquired. The CJEU should under no circumstances accept the arguments of the Bulgarian authorities that they are protecting their national and constitutional identity, for what they are protecting are human rights violations. The Court should repeat its K.B. judgment, stating that a breach of human rights equals a breach of EU law and that such a breach can never be a justification.