The case pending before the Court of Justice of the European Union (CJEU) V.M.A. v Stolichna Obsthina, Rayon ‘Pancharevo’ (C-490/20) concerns a child born in Spain to a family of a Bulgarian and a British citizen. At birth, the child received a birth certificate listing her two mothers, but without specifying who the child’s biological mother was (an example of good practice of Spain that takes into account the child’s relationship with both parents). The baby is an year and a half old and is still stateless.
By referring the case for a preliminary ruling to the CJEU, the ACSC raised two questions of critical importance. The first question raised by the national court before the CJEU is whether the Bulgarian authorities may refuse to issue a birth certificate on the sole ground that the applicant refused to provide information as to who the biological mother was. The second question before the CJEU concerns the balance between the national and constitutional identity of the Member States (Article 4(2) TEU), on the one hand, and the right to private and family life and the best interests of the child (Articles 7 and 24(2) of the Charter of Fundamental Rights of the European Union), on the other hand.
Undoubtedly, the rules of civil status are within the competence of the Member States and the EU is obliged to respect that national identity. However, the notion of “national identity” cannot be used in an uncontrolled manner by Member States and cannot serve as grounds for acts of discrimination and violation of the rights of a certain group of the population – LGBTI people. On the contrary, in order to invoke their national and constitutional identity, Member States must demonstrate that there is a sufficiently serious threat to justify the restriction of fundamental rights for the Union. This is clearly not the case here. In no way can the issuance of a birth certificate to a baby including both parents, who happen to be of the same sex, be accepted as a serious threat to the Bulgarian State
Director Legal Defense Program