The Cross-Border Recognition of the Parent-Child Relationship in Rainbow Families under EU Law: A Critical View of the ECJ’s V.M.A. ruling
In its much-awaited ruling in Case C-490/20 V.M.A. v. Stolichna obshtina, rayon ‘Pancharevo’ (the ‘VMA’ case), the ECJ held that EU Member States are required to recognise – for the purposes of EU free movement law – the familial ties established in another EU Member State between a child and her parents who are a same-sex couple. With this judgment, the Court has entered uncharted territory: although the Court has previously already seen cases involving same-sex couples before it (e.g. Coman, Maruko, Römer, Hay and Parris), this is the first time that it has been asked to rule in a case involving the controversial question of parenting by same-sex couples. As Advocate General Kokott noted in her Opinion in V.M.A. (para 4), what is at issue in this case ‘is a very sensitive matter, given the exclusive competence of the Member States in the area of nationality and family law and the considerable differences that exist, to date, within the European Union in respect of the legal status of and the rights conferred on same-sex couples’. For this reason, and even though gaps and uncertainties persist, the Court’s ruling can be hailed as a success, and a positive first step towards the full recognition of rainbow families in Europe.
V.M.A. – a Bulgarian woman – and K.D.K. – a British woman – are married and have been living together in Spain since 2015. In December 2019, the couple had a daughter, S.D.K.A., who was born in Spain, where she has been resident with her mothers since her birth. The Spanish authorities issued a birth certificate for S.D.K.A. which includes V.M.A. and K.D.K. as her mothers. V.M.A. also applied to the Bulgarian authorities for a birth certificate for the child, this being needed for the issuance of a Bulgarian identity document (note that, although the non-issuance of a Bulgarian birth certificate would have no legal effect on the Bulgarian nationality of the child, it would have made it more difficult for a Bulgarian identity document to be issued). The Bulgarian authorities responded by instructing V.M.A. to provide evidence of the parentage of the child, with respect to the identity of her biological mother. Following her decision not to provide the information requested, the Bulgarian authorities refused V.M.A.’s application, basing this on two grounds: (1) the lack of information concerning the identity of the child’s biological mother and (2) the fact that a reference to two female parents on a birth certificate was contrary to the public policy of Bulgaria. V.M.A. brought an action against that refusal before the Administrative Court of the City of Sofia. The latter stayed the proceedings before it and made a reference for a preliminary ruling to the ECJ, asking essentially whether the refusal by the Bulgarian authorities to issue a birth certificate for S.D.K.A. infringes Articles 20 and 21 TFEU, as well as a number of provisions of the EU Charter of Fundamental Rights.
The Court started off its judgment on the premise that S.D.K.A. has Bulgarian nationality by birth – since one of her mothers is a Bulgarian national – and thus is an EU citizen (para 39). From this, it followed that the Bulgarian authorities are required, by virtue of Article 4(3) of Directive 2004/38, to issue to S.D.K.A. an identity card or passport stating her nationality and her surname as it appears on the Spanish birth certificate (para 44). The Court, also, stressed that Article 4(3) requires the Bulgarian authorities to issue an identity card or passport to the child, regardless of whether a new birth certificate is issued for her by the Bulgarian authorities (para 45).
The Court then noted that ‘the rights which nationals of Member States enjoy under Article 21(1) TFEU 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’ (para 47). It explained that, based on the facts of the case, the Spanish authorities lawfully established that there was a parent-child relationship between S.D.K.A. and her two parents and attested this in the birth certificate (para 48). As a result of this, ‘V.M.A. and K.D.K. must, therefore, pursuant to Article 21 TFEU and Directive 2004/38, as parents of a Union citizen who is a minor and of whom they are the primary carers, be recognised by all Member States as having the right to accompany that child when her right to move and reside freely within the territory of the Member States is being exercised’ (emphasis added, para 48). A refusal of this right can amount to an obstacle to the exercise of the right to free movement under Article 21 TFEU (para 48).
The Court then considered whether the Bulgarian authorities could justify their refusal to issue a birth certificate and an identity document for S.D.K.A. on the ground of public policy and the need to protect the national identity of Bulgaria. The ECJ noted that the Member State’s obligation to issue an identity card or passport to a child and to recognise the parent-child relationship in the context of the child’s exercise of her EU free movement rights ‘does not undermine the national identity or pose a threat to the public policy of that Member State’ (para 56). This is because ‘[s]uch an obligation does not require the Member State […] to provide, in its national law, for the parenthood of persons of the same sex, or to recognise, for purposes other than the exercise of the [child’s EU] rights […], the parent-child relationship between that child and the persons mentioned on the birth certificate drawn up by the authorities of the host Member State as being the child’s parents’ (para 57).
The Court also pointed out that Member States can only derogate from their obligations under EU free movement law if their measures do not breach the EU Charter of Fundamental Rights (para 58). For this purpose, it noted that the relevant fundamental rights are those guaranteed by Articles 7 and 24 of the Charter (para 59), pointing out that the relationship between the child and each of her mothers is protected under Article 7 of the Charter (the right to respect for family life) (paras 61-62). Going even further, the Court added that Article 7 must be read in conjunction with Article 24 of the Charter, which integrates into EU law the rights laid down in the UN Convention on the Rights of the Child (CRC) (para 63). The ECJ then made specific reference to Article 2 CRC, which requires that the child should enjoy the rights guaranteed in the Convention without discrimination based on the fact that her parents are of the same sex (para 64). The Court concluded that it would be contrary to Articles 7 and 24 of the Charter if the child was deprived of her relationship with one of her parents when exercising her right to move and reside freely within the territory of the Member States or for her exercise of that right to be made impossible or excessively difficult in practice because her parents are of the same sex (para 65).
At the end of its judgment, the Court noted that, in case S.D.K.A. is not a Bulgarian national after all and thus does not derive free movement rights from EU law, she should nonetheless be considered a ‘direct descendant’ of V.M.A., who is a Union citizen, and thus also a ‘family member’ of V.M.A. for the purposes of EU free movement law. In this way, the ECJ clarified that the term ‘direct descendant’ within the meaning of Article 2(2)(c) of Directive 2004/38 must be interpreted as including all children of Union citizens, including their joint children with another person of the same sex (paras 67-68).
The ruling in V.M.A. can be hailed as a success, and as a positive first step towards the full recognition of rainbow families in Europe.
The ruling is important, in that it has made it clear that the principle of mutual recognition applies to birth certificates issued by EU Member States, including when they identify two persons of the same sex as the parents of a child. This is especially important for rainbow families, given that a rather large number of Member States (see this study) refuse to allow two persons of the same sex to become the joint legal parents of a child in their territory and also refuse to recognise the familial ties that the members of rainbow families have legally established in other countries.
With this ruling, the Court has ensured that minors who are Union citizens can be accompanied by both of their same-sex parents in whichever EU Member State they decide to move. In addition, LGB Union citizens who are married with a person of the same sex can be accompanied or joined in the territory of another EU Member State, not only by their spouse (as was already established in Coman) but also by their children (confirmed in V.M.A). This sends out a strong message to all EU Member States that under no circumstances can rainbow families be separated when they cross an EU border. This is a plight many rainbow families have all too often faced, a plight which has become even more pronounced as a result of the Covid pandemic and the travel curbs imposed in response to it (see here).
The ruling is also important because it established that the non-recognition of the parent-child relationship in situations involving the exercise of EU free movement rights can amount to a breach of fundamental rights protected under the Charter and the CRC. More significantly, in this ruling, the Court seems to acknowledge that when the children of same-sex couples are denied rights which are granted to children whose parents are not of the same sex, this amounts to discrimination on the ground of sexual orientation by association. Despite the fact that the Court has not analysed this point extensively, it is, nonetheless, an important statement, in that it (correctly) recognises that the children of rainbow families are similarly situated with children of all other families and should thus be treated equally (for a full analysis of this argument see A. Tryfonidou,’EU Free Movement Law and the Children of Rainbow Families: Children of a Lesser God?’ (2019) 38 YEL 220, pp. 259-262).
Finally, the ruling is also important in symbolic terms because it demonstrates that for the purposes of EU law, rainbow families are ‘families’, this being another indication that the ‘family’ of EU law is increasingly inclusive and diverse and no longer confined to the traditional nuclear family.
Despite the fact that – for the above reasons – the ruling can be characterised as a first step towards the (cross-border) recognition of rainbow families in the EU, it has by no means resolved all problems faced by such families: a number of gaps and uncertainties still remain following its delivery.
The first point that should be stressed is that rainbow families whose situation does not fall within the scope of EU law are, naturally, not protected by EU law. Accordingly, their position continues to depend entirely on the choices of the Member State where they live. In situations where their fundamental rights are infringed by that State, they will only be able to claim protection under the European Convention on Human Rights (ECHR). There are currently a number of cases pending before the ECtHR, regarding the issuance of birth certificates which include two parents of the same sex (R.F. and others v. Germany; S.W. and others v. Austria) or the cross-border recognition of such birth certificates (A.D.-K. v. Poland). However, the signs from Strasbourg are not particularly promising, taking into account the ECtHR’s overly cautious approach in its recent decision in S.-H. v. Poland, which involved the cross-border recognition of the parent-child relationship in a case involving a same-sex male couple who became parents through surrogacy.
Moreover, the V.M.A. ruling does not make clear what happens in situations where the birth certificate which recognises two persons of the same sex as joint parents was not issued by an EU Member State. In other words, will the requirement of mutual recognition imposed in this case apply also to birth certificates (or other documents, including court judgments) issued by non-EU Member States? If not, will it make a difference if those documents, albeit issued in a third country, have already been recognised by an EU Member State? The clarification of this question will be especially important for male same-sex couples who often resort to surrogacy in a non-EU country, where their joint parental status is also established.
Another issue that the judgment has not clarified is the extent of the obligation of mutual recognition imposed by it. In particular, for which purposes exactly must the familial ties among the members of rainbow families that exercise free movement rights be recognised? Is it only for the purpose of granting family reunification rights (i.e. for obtaining access to the territory of another Member State for all family members), as appears to be the case with the cross-border recognition of same-sex marriages as per Coman? Or does the obligation go further and requires all EU Member States to recognise the familial ties among the members of rainbow families who exercise free movement rights, for all legal purposes once the family has accessed the territory of another Member State?
The Court stressed in its judgment that, what is required, is to ensure that the parent-child relationship is recognised by all Member States ‘for the purposes of permitting S.D.K.A. […] to exercise without impediment, with each of her two parents, her right to move and reside freely within the territory of the Member States’ (para 49) and that the mothers must ‘as parents of a Union citizen who is a minor and of whom they are primary carers, be recognised by all Member States as having the right to accompany that child’ (para 48). There are two possible readings to the above statements:
- a narrow reading, according to which the sole aim of the Court is to ensure that the family can move together between EU Member States. According to this reading, the Court thus merely wishes to guarantee the right of access of rainbow families to another EU Member State; or
- a broad reading which takes into account the statement made by the Court in paragraph 47 of its judgment, according to which ‘the rights which nationals of Member States enjoy under Article 21(1) TFEU 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’. Although such a ‘normal family life’ would certainly also require that all the members of a rainbow family can move together and be admitted into the Member State of destination, this would not suffice: leading a normal family life requires that the family is recognised as a family for all legal purposes, once its members have been admitted (together) into the territory of another Member State.
Clarification regarding this latter point may, in fact, be forthcoming, as there is currently another case pending before the ECJ – Case C-2/21 Rzecznik Praw Obywatelskich – which has been referred by a Polish court and involves similar questions. A complete or partial solution to the problems faced by rainbow families in a cross-border context may also be provided legislatively in the nearer future. In line with its LGBTIQ Equality Strategy 2020-2025, the Commission is currently working on a draft proposal for a legislative instrument with the aim to ensure cross-border recognition of parenthood between EU Member States which will also apply to rainbow families.
As explained, the ECJ ruling in the recent V.M.A. case is a positive step towards the full recognition of rainbow families in Europe. The ruling established that the principle of mutual recognition applies to birth certificates issued by EU Member States, including when they identify two persons of the same sex as the parents of a child. This sends out a strong message to all EU Member States that rainbow families can under no circumstances be separated when they cross an EU border. The ruling also made it clear that the non-recognition of the parent-child relationship in situations involving the exercise of EU free movement rights can amount to a breach of the fundamental rights protected under the Charter and the CRC. Moreover, it has recognised that, for the purposes of EU free movement law, the children of rainbow families are similarly situated with the children of all other families and should thus be treated equally.
Nonetheless, a number of gaps and uncertainties remain following the delivery of the Court’s judgment. Rainbow families whose situation does not fall within the scope of EU law do not benefit from the protection offered by EU law. Accordingly, the State where they live may continue to refuse to recognise the familial ties established in other countries. Moreover, the V.M.A. ruling does not clarify what happens where the birth certificate which recognises two persons of the same sex as the joint parents of a child, was not issued by an EU Member State. The ruling also does not make it clear for which purposes exactly the familial ties among the members of rainbow families that exercise free movement rights must be recognised (i.e. if it is only for family reunification purposes or for all legal purposes). Some of these uncertainties may be resolved soon, either judicially (through the Court’s ruling in Rzecznik Praw Obywatelskich) or legislatively (if the Commission’s forthcoming proposal will be adopted by the EU legislature).