A new development in Poland concerning the legal situation of children born to same-sex couples, including through surrogacy, is worth mentioning.
The current state of affairs in this area in Poland was illustrated earlier on this blog, and here on Conflictoflaws. As explained in these posts, Polish authorities and administrative courts tend to object to the transcription into Polish civil status registry of a foreign birth certificates indicating persons of the same sex as parents. This results in practical complications in everyday life of the family, for example when parents apply for an ID cards for their children.
In one of such cases, the Regional Administrative Court in Kraków decided on 9 December 2020 to submit the following preliminary question the Court of Justice of the EU (III SA/Kr 1217/19, in Polish):
Should Article 21(1) in connection with Article 20(2)(a) of the Treaty on the Functioning of the EU in connection with Article 7, Article 21(1) and Article 24(2) of the EU Charter of Fundamental Rights be interpreted in such a way that it precludes the authorities of an EU Member State, whose nationality a child holds, from objecting to the transcription of the birth certificate issued in another Member State, indispensable for the issuance of the identity card of the Member State of the child’s nationality, on the ground that its national law does not provide for same-sex parentage, whereas the birth certificate indicates persons of the same sex as parents?
The referring court asked that the matter be dealt with under an urgent procedure, since the interests of a child are at stake.
In the case at issue, a child was born in Spain to two women, one of Polish and the other one of Irish nationality. The Spanish birth certificate indicates both women under the heading Mother A and Mother B as parents. The women were legally married in Ireland. The child does not have either Spanish or Irish nationality (the reason for that is not explained in the decision), so parents wanted the birth certificate to be transcribed into Polish civil status register asa a precondition to apply for an ID card and a passport. Administrative authorities, referring to the quite settled jurisprudence of the Administrative Supreme Court, rejected this application explaining that such transcription would be contract to public policy (ordre public).
The information about this case was released on the official website of the Polish Ombudsman (here), who intervened in the case and submitted that CJEU should have its say on the matter, given that EU law, including as regards the free movement of persons, is involved.
Very interesting post, Anna. I wonder how the Ombudsman was intervening in the court proceedings. In the areas known to me where an Ombudsman exists, its role is usually to mediate and propose a non-binding solution to the parties. He or she would not appear in court.
The institution that I called an ombudsman is Rzecznik Praw Obywatelskich – RPO (on its official website in English referred to as Commissioner of Human Rights). RPO is regulated directly in our Constitution (Articles 208-212). The scope and mode of its work is specified in a separate statute (Ustawa o Rzeczniku Praw Obywatelskich). For example, Article 14 of this statute provides that it may, inter alia, ask for instituting administration proceedings, lodge complaints against decisions to administrative court and participate in such proceedings with the rights enjoyed by the prosecutor, as well as lodge cassation or extraordinary appeal against each final and valid sentence, under rules and procedures set forth elsewhere. One of its numerous competences is the possibility to file a cassation appeal to the Supreme Administrative Court (Article 172 § 2 Law on the procedure in front of administrative courts). In the commented case, parents have asked the ombudsman for help once the decision of the administrative authority of the first instance was delivered.
To the best of my knowledge the roots of this solution are French and they referred to the prosecutor at first. Traditionally the prosecutor could take part as a party in civil, and later on, also in administrative proceedings and in some cases even initiate them. The prosecutor was supposed to defend the public interest. At the end of the 80 (the ombudsman was introduced 1987 in Poland) that solution was adopted for the ombudsman – giving him pretty strong instruments in cases with human rights background. The ombudsman acts as a party, alongside the individuals, with all procedural rights. In the past the ombudsman was therefore also present in some Polish preliminary proceedings at the CJEU, since he was “taken over” form the national procedure, where he has been a party. Mediating and proposing is also a tool the ombudsman has and uses, but the possibility to initiate a court proceeding (or to be the driving force in it) is the meat.