Little by little the Court of Justice of the European Union (CJEU) is extending the rights of LGTBI couples throughout the EU. And it does so even in those countries that do not have recognized same-sex marriage. The last knock came this Tuesday, with a ruling that concludes the children of an LGTBI couple recognized in this way in a country of the European Union should be considered as such in any other member state, even if this right does not exist, according to a judgment of the CJEU disclosed this Tuesday. The magistrates reach this conclusion to respond to a Bulgarian court He was asking about the case of a couple of women – one Bulgarian and the other French – living in Spain, where a girl had been born whom the City Council of Sofia, the capital of Bulgaria, refused to register.
The convolutedness of the situation (a Bulgarian mother, another French, a girl born in Spain and the refusal of the Sofia City Council to register her) gives rise to this decision having more edges than those that emerge from the case itself. Why? The competences over the civil status of people fall on the Member States, that is, it is each country that decides on marriage and whether or not it accepts that there is between people of the same sex. But this competition cannot become an obstacle to fundamental rights such as freedom of movement. And it is in this way that the magistrates of Luxembourg end up recognizing rights to this group.
With this appeal, the CJEU has resolved the case of the aforementioned couple of women, who lived in Spain and had a daughter in 2019. The Spanish authorities, a country in which equal marriage is fully recognized, registered the girl and issued a birth certificate in which the two women were recognized as parents. When the couple wanted to register her in Sofia, the Bulgarian capital, the City Council demanded that they specify which of them was the biological mother. The Bulgarian woman who makes up the couple rejected this request “considering that she was not obliged to provide the information.” The Administration’s response was that “the mention on a birth certificate of two parents of the same sex was contrary to the Bulgarian public order, which does not allow marriages between persons of the same sex”.
The decision was appealed to the Bulgarian court, which submitted a preliminary ruling in Luxembourg. The response of the judges has been that “the Member States must recognize the right of the bond of filiation [de la niña] to allow you to exercise your right to free movement ”. And, in addition, they add that “each parent must have a document that enables them to travel with the minor.” The ruling clarifies that these rights are only limited to this purpose and that “it does not mean that the Member State in question contemplates in its national law the parental status of persons of the same sex, nor that it recognizes for purposes other than those that the rights that Community legislation confers on the minor ”.
Three years ago and also, based on the right to free movement of people, the CJEU forced Romania to recognize the right of residence of a US citizen married to another Romanian. “The Member States are free to authorize or not the marriage between people of the same sex, they cannot hinder the freedom of residence of a Union citizen by denying his or her spouse of the same sex, outside the EU, the granting of a right of residence”, he concluded. the court then.
This new ruling comes at a time when several Eastern European Union countries, such as Hungary and Poland, are accentuating their homophobic positions. Viktor Orban’s government approved a regulation in June that prohibited mentioning this sexual orientation in schools, prompting a reaction from 14 member countries demanding that the Commission act. In Poland, more than 100 localities signed a declaration against “the LGTB ideology” last year.
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