Case law Developments in PIL

Recognition and Registration of Same-sex Parentage Established Abroad as Mission Impossible for the Bulgarian Authorities

The author of this post is Nadia Rusinova, Lecturer in International/European Private Law at The Hague University of Applied Sciences.


In 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 a case concerning the refusal by the Sofia municipality to issue a birth certificate for a child, born in Spain, whose birth was attested by a Spanish birth certificate naming V.M.A. and K.D.K., who are both females, as the child’s mothers.

The case, which is registered as C-490/20, V.M.A. v. Stolichna Obsthina, Rayon ‘Pancharevo’ (Sofia municipality, ‘Pancharevo’ district), poses a question of great importance, and one that has been often asked, including in a recent report prepared for NELFA, the Network of European LGBTIQ* Families Associations: may EU law require an EU Member State to recognize the legal ties between the children and both of their same-sex parents as these have already been legally established elsewhere?

This question remains unanswered to date. It is clear that if the host Member State does not legally recognize the familial ties already enjoyed by the members of a same-sex family moving to its territory from another Member State, this can amount not only to a breach of the free movement of persons provisions. Such failure will amount also to violation of Article 8 and possibly of Article 14 ECHR, as it constitutes breach of the right to private life of the parents, and breach of their and the child’s right to family life.

In the present case – C-490/20 – one hearing of four hours already took place on 9 February 2021, and opinion of AG is expected on 15 April 2021. Therefore, clarity will be provided soon and this post does not have the purpose to predict what the outcome of this case will be.

The aim is rather to provide some insights in the light of the Bulgarian legislation, case law and administrative authorities approaches, to define where the main problem lies and to explain why it appears impossible for the Bulgarian authorities to register same-sex parents in the birth act of the child.

It will also argue that the problem is not only the registration as such, but also the refusal to recognize parentage, established abroad, which constitutes important private international law issue with severe consequences for the parents and the child.

Facts of the Case and the Request for Preliminary Ruling

V.M.A. is a Bulgarian national married to a UK national, K.D.K. They are both females. The couple resides in Spain and have entered into a civil marriage in Gibraltar, United Kingdom, on 23 February 2018. 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’. In January 2020 V.M.A. requested Sofia municipality, ‘Pancharevo’ district, to issue a Bulgarian birth certificate for the child S.D.K.A.

The authorities requested evidence of the child’s parentage with respect to the biological mother. V.M.A. responded she was not required to do so in accordance with Bulgarian law. On 5 March 2020, Sofia municipality, ‘Pancharevo’ district in a letter refused to issue a Bulgarian birth certificate on the grounds that there is lack of sufficient information regarding its biological mother, and that the registration of two female parents on a child’s birth certificate is inadmissible, as same-sex parentage (as well as same-sex marriages) is currently not permitted in the Republic of Bulgaria and such a registration was contrary to public policy.

V.M.A. appealed the refusal before the Administrativen sad Sofia grad (Administrative Court of the City of Sofia), stating that the refusal to issue a Bulgarian birth act infringes both substantive and procedural law. This Court referred to the ECJ and requested preliminary ruling, formulating four interrelated questions on how the EU law on the discretion on rules for establishing parentage and registration of birth acts should be interpreted.

The Acquisition of Bulgarian Nationality in Respect to the Child

Several organizations, including ILGA EUROPE assumed that the child had been deprived of Bulgarian, and therefore European citizenship, and was at risk of statelessness. So, the first and most important question is did the child acquire Bulgarian nationality, or she has been deprived of it and there is a risk of statelessness?

To answer, we need to take closer look at the referring court’s arguments. The court says that

The failure to issue a Bulgarian birth certificate does not constitute a refusal of Bulgarian nationality. The minor is a Bulgarian national by operation of law notwithstanding the fact that she is currently not being issued with a Bulgarian birth certificate.

Stating that the refusal itself does not preclude acquisition of Bulgarian nationality for the child, the court implies that the parentage is established as it is in the Spanish birth certificate. This conclusion might well be on first glance questionable. Is the recognition of the parent-child relationship, established abroad, prerequisite for acquiring Bulgarian citizenship? The answer is likely to be negative and the court assessed it correctly.

Obviously, the acquisition of Bulgarian nationality in this case is by descent (jus sanguinis), as the child is born on the territory of Spain and jus soli cannot be applied. According to Article 8 of the Law on Bulgarian Nationality, Bulgarian national of origin is anyone to whom at least one parent is a Bulgarian citizen.‎ This provision is in accordance with the Council of Europe European Convention on Nationality, which ensure that children acquire nationality ex lege if one of its parents possesses, at the time of the birth of these children, the nationality of that State Party, subject to any exceptions which may be provided for by its internal law as regards children born abroad.

This provision should not be interpreted restrictively. States have to decide whether they want to restrict the acquisition of the nationality by parentage in cases of birth abroad, and Bulgaria did not explicitly envisage any restrictions in this regard, neither the domestic law requires formal recognition of familial links. As a result, the child indeed acquired Bulgarian nationality at the time of its birth by operation of law. The recognition of the parentage appears irrelevant and the fact that the applicable Bulgarian law does not allow this same-sex couple and their child to legally establish their familial links does not change the origin as such.

What Exactly the Refusal Concerns – Recognition of Legal Parentage, or Registration of Birth Act in the Civil Registry?

Interestingly enough, it appears that in the present case the parentage is in some way technically recognized for purposes of nationality, to a high extend due to the existence of harmonized domestic and international legislation. This same parentage however is not recognized for the purpose of establishing legal parent-child relationship in the Bulgarian legal order, which poses the question where the main issue lies – is it conflict of laws, or pure administrative formality?

It is appropriate to clarify that recognition of a foreign civil status, its registration, and issuance of civil status certificates are three separate issues. The first one – recognition of a foreign civil status – falls within the scope of the private international law and is therefore a legal problem, and the latter two are merely administrative services. Naturally, a civil status cannot be registered if it is not firstly recognized.

Here it would be useful to provide brief explanation on one purely linguistic issue, which however might majorly impair the translation and contribute to the confusion. In Bulgarian “issuance of birth act” means the act of registration or transcription of the (foreign) birth act in the civil registry, and at the same time this expression is used to describe the administrative service to provide the entitled person with the birth certificate (in Bulgaria the birth certificates are only issued on paper, not digitally). In this sense, “birth act” and “birth certificate” in Bulgarian in many cases even in the legal literature are used interchangeably, which in the present case can impede the correct interpretation of the legal issue.

From this perspective there is one very important question to be answered. What exactly the refusal pertains to – to the recognition of legal parentage, or to the registration of birth act in the Bulgarian civil registry? According to the official translation, the Administrative Court in its first question to the CJEU uses the expression “refusal to issue a Bulgarian birth certificate”, but the issuance of birth certificate, as pointed above, is a simple administrative service, which has its grounds on and respectively follows the registration of the birth act in the civil registry, which on its turn is based and follows the recognition of the parentage. In this sense, if Bulgarian birth certificate is issued or not cannot be the main problem that needs solution.

In para 23 and 26 the Administrative Court states that

only the legislature is in a position to exercise its sovereignty and decide whether a child’s parentage can be determined not only from one mother but from two mothers and/or fathers […] The issue before the Administrative Court of the City of Sofia […] relates to two persons of the same sex being recognized as mothers of a child of Bulgarian nationality born in another Member State by having their names included on the child’s Bulgarian birth certificate. Unlike in Coman, this question is linked to the method of establishing the parentage of a Bulgarian national.

The doubts of the Court here clearly refer to the recognition of parentage, which in this case appears to be problematic under the Bulgarian domestic law.

What then the authorities actually refused – the recognition of familial link, or its registration? The short answer is both, simply because recognition of established parentage under the Bulgarian law is done throughregistration of the birth act. There is no separate procedure to recognize the legal parentage before the registration of the birth act. The competent authorities are the administrative ones – according to the Ordinance on the functioning of the system for civil registration, the civil status officers in the respective municipality department are responsible for this registration, and therefore for the actual recognition of the familial ties, which is a prerequisite for the registration. This way the recognition occurs simultaneously with the registration, and the assessment of these two different in their substance issues – the private international law matter of recognition and the administrative matter of registration – are solely in the hands of the civil registry officers.

The Inconsistent Approach of the Bulgarian Authorities in Recognizing and Registering Same-sex Parentage

It must be noted that entering of two same-sex parents in the birth act, as pointed in the request to the CJEU, is just not possible under the Bulgarian law. Only one approved model of birth act and certificate, which comply with the Bulgarian legislation, exists, and the data on the child’s parents is divided into two columns – “mother” and “father”, respectively. In this sense, the administrative authority cannot technically issue a birth act, to the extent that it does not provide for entry of two mothers.

Due to the legislative imperfections, mentioned above, the discussed three issues – recognition of foreign civil status, its registration, and the issuance of civil status acts and certificates – are not treated as separate matters by the courts in the Bulgarian case law. Examples from the recent years of different instances, including the Supreme Administrative Court of Bulgaria, show that the authorities often mix all three and do not provide arguments in respect to their different natures in their court acts. One thing is consistent – the absolute refusal to recognize same-sex parentage, which is however reached by various ways and accompanied by various reasons.

One of the inconsistencies concerns the following question: Is the refusal to register birth of a child to same sex parents in the civil registry an “individual administrative act” within the meaning of the Administrative Procedural Code (APC), which would make its appeal admissible? According to one of the judgments, the refusal, incorporated in a letter, is indeed an administrative act within the meaning of Article 21, para. 3 of the APC, and appeal before the competent court is procedurally admissible. The reasoning is that it contains a statement of sovereign will – a refusal to issue a birth act.

This approach is endorsed by the Supreme Administrative court, confirming that refusal to issue a birth act is a refusal to perform an administrative service and therefore constitutes an individual administrative act within the meaning of the abovementioned provision. This would be the correct interpretation of the law, providing the parties with the possibility for judicial review.

On the contrary, in another judgment (which concerns different-sex parents but the same legal issue, i.e. recognition of parentage and issuance of Bulgarian birth act) the court holds that such decision does not constitute an administrative act, subject to judicial review under APC.

Surprisingly, the appeal is therefore dismissed on the following grounds:

By its legal nature, the recognition of an act of a foreign authority constitutes a declarative statement by the authority concerned to respect the legal effects of that act … In its declaratory content, the contested act includes only‎‎ ‎‎a statement of disregard for the legal consequences – the declaratory effect of the foreign act.‎ The refusal at hand does not constitute an individual administrative act within the meaning of Article 21(1) of the APC and is not subject to judicial review.

For the parties here there is no possibility to appeal and the only way left, as the Court mentions in this act, is to follow the procedure enshrined in Article 118 para 2 of the Private International Law Code – to bring legal action before the Sofia City Court to rule on this dispute over the conditions for recognition of a foreign decision.

Other inconsistency concerns the Courts’ approach in case of judicial review of the refusal to register birth of a child to same-sex parents in the civil registry. Once admitted to appeal, the courts interpret the law differently and offer substantively different solutions, of course all with the same result – endorsing the refusal.

In the majority of the cases the Court would hold as a ground for refusal that the registration of two same-sex parents is contrary to the public policy (which will be discussed below). As an example, the Supreme Administrative Court holds in one of the judgments that:

The opinion is fully shared that according to the Bulgarian legislation it is inadmissible to register two female parents, as same-sex marriages in the Republic of Bulgaria are currently inadmissible.

The same issue is pointed by the administrative authority in Case C-490/20 – according to the defendant, entry of two female parents is inadmissible as same-sex marriages in the Republic of Bulgaria at the moment are inadmissible, and such an entry would be contrary to the public policy.

In case No. 2784/2020 the Administrative Court-Sofia City takes even more surprising recourse, placing the marriage of the parents as pre-condition to the recognition of the legal parentage. It concerns a child born in USA; the parents are two mothers in same-sex relationship and they request respectively the birth (not the marriage) to be registered in Bulgaria. The refusal to register the act followed shortly and the administrative actis reasoned as follows:

it is not clear from the submitted birth certificate who is the mother is and who is the father of the child, as only “parents” are present in the foreign birth act […] From the submitted documents it is not clear as well whether the marriage between the parents is recognized in the manner prescribed by law, respectively whether its execution is allowed.

In subsequent appeal the Court endorses this approach:

A birth certificate, in which two people are entered as parents, without determining which of these persons is the mother, respectively the father of the child, makes it impossible for the administrative body to fulfill its obligations, resp. to issue a birth act. In this case it is also important to recognize in the appropriate order the marriage between L. E. M. and V. M. M. … there must be a valid and recognized by the competent authority marriage between L. E. M. and V. M. M. so that the child is Bulgarian citizen, and then it to be subject to civil registration.

These examples show that for one or another reason, entering same-sex parents in the birth act is inadmissible for the Bulgarian authorities. But what is the correct action? The conflict comes from the fact that there is no provision allowing the administrative authority to simply refuse registration. Such possibility is not mentioned at all in the applicable Ordinance, where the options are exhaustively listed:

Art. 10. (1) The civil status official shall obligatorily verify the data for the parents, entered in the received notice for birth, with the data in the register of the population, including the determined origin from father. In case of ascertained incompleteness or discrepancies, the civil status official has the right to supplement or correct the birth notification with data from the population register, as well as to determine the origin according to the Family Code. When the origin of a parent (mother and / or father) is not established, when compiling the birth certificate, the relevant field intended for the data for this parent shall not be filled in and crossed out.

Analyzing this provision, we should therefore conclude one more time that since there is no option to refuse registration of the birth act, the main issue in case C-490/20 remains to be refusal of recognition of parentage, which is already established by foreign civil act. However, in the cases pointed above, the administrative authorities have chosen exactly to refuse registration, despite it remains unclear where they derive this option from. In the cases when they (correctly) did not refuse registration, they pursued the only option left under the abovementioned provision, which is even more inappropriate – the origin of the child to be established in relation only to his/her mother. In this case the administrative authority accepts that the origin of the father has not been established as it does not comply with the Bulgarian legislation, and applies the provision of Article 12(3) ‎‎of the Ordinance by not filling in the corresponding field on the birth act intended for the data of that parent. Not including the provided particulars would not lead to its illegality. Such solution is offered by the Administrative Court here and endorsed by the Supreme Administrative court.

This is exactly the reason why the administrative authorities in Case C-490/20 initially obliged the applicants to provide information which one of the same-sex parents is the biological mother. In case the mothers would have provided such information, the authorities would have recognized only the parentage established in respect to the biological mother and would have left empty the space intended to enter the father of the child. In this case the child would have been with status “father unknown”.

The problematic nature of such approach is clear and it would for sure violate the right to respect for family life not only of the both mothers, but mostly of the child. The Supreme Administrative Court, foreseeing the problems that can arise from this quite imperfect solution, even goes further and suggests in the future the interested parties to take action and conduct a procedure under Article 118(2) of the Private International Law Code. Following this suggestion, in the course of this judicial procedure the parties are supposed to clarify the issues related to the completion of the information missing in the act issued by the municipal authorities, which would only lead to additional lengthy, and expensive court battles with unclear outcome.

The Application of the Public Policy Exception by the Bulgarian Authorities

The main issue pointed by the administrative authority in Case C-490/20 as ground for refusal is that entry of two female parents appears inadmissible, as same-sex marriages in the Republic of Bulgaria at the moment are inadmissible, and such an entry would be contrary to the public policy.

The legal basis for this assessment is a general provision. Article 117(5) of the International Private Law Code of Bulgaria states that decisions and acts of foreign courts and other bodies are recognized and declared enforceable, if this is not contrary to Bulgarian public policy. However, as pointed here, CJEU leans towards a strict interpretation of the public-policy exception in matters of conflict of laws. Several questions then remain unanswered, when analyzing how the Bulgarian authorities assessed the contradiction between entering same-sex parents in the birth act and Bulgarian public policy. Where is the direct link between joint parentage of same-sex couple and the ban for same-sex marriages in regard to the public policy exception? Why the authorities avoid clear reasoning in this direction and resort to ambiguous arguments? Based on which concrete arguments the public policy does not allow same-sex couple to be legal parents to a child?

The “Bulgarian public policy” in this regard is an issue that remains unspecific. It is discussed in the light of same-sex marriage for example in case No 7538/2017, Administrative Court Sofia City. The Court states that even if the marriage between same-sex Bulgarian citizens does not contradict the law of the country in which it is concluded, this marriage contradicts the Bulgarian “public order”. “Public order” is defined as mandatory norms and principles in the administration of justice, which have universal significance, not taking into account a contradiction of a specific legal norm, but a contradiction that would lead to a violation of the public and personal interest of the citizens, and to violation of basic values ​​in society. However, the Court refrains from pointing any particular arguments and again refers to the legislative restrictions.

The constitutional ban on same sex marriages naturally would lead to refusal to recognize and register this particular marriage, but might have as direct consequence only the impossibility to apply the pater estpresumption to the children born to this marriage as contrary to the public policy. If the public policy exception is to be applied by the administrative or judicial authority in cases like C-490/20, then specific argumentation must be provided. Such argumentation to the best of my knowledge is not yet provided in any Bulgarian case law, neither it exists in whatever practical directions or ordinances that civil registration officers can use for reference.

In regard to the constitutional identity and national identity as separate grounds to justify the refusal of recognition of the same-sex parentage, indeed as pointed in the request for preliminary ruling the Bulgarian constitutional tradition and Bulgarian family and inheritance law should be considered. This is of course true, but here balance must be sought as the negative views on LGBTQ rights in Bulgaria are incredibly persistent and, in some way, seen as traditional.

Conclusion

In several EU Member States same-sex couples are neither allowed de facto to become joint parents of a child nor can they be legally recognized as joint legal parents. In these legal systems same-sex couples and their children are not allowed to legally establish their familial links, and Bulgaria is to this date one of them. Case with the same subject – A.D.-K. and others v. Poland, Application no. 30806/15, is currently pending before the ECtHR and communicated on 26 February 2019. There is not much to add, but only to hope that the laws of all Member States will in the near future be applied in a non-discriminatory manner and with respect for fundamental rights, especially when they have a direct impact on the enjoyment of EU citizenship.

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