Magistrate Sides With Lesbian Couple in Baby Citizenship Fight Against Bulgaria

A baby girl with a married lesbian couple as her parents became stateless after Bulgaria refused to recognize her, despite one of the women being from Bulgaria. A magistrate for Europe’s top court says that was wrong.

A man walks by the European Court of Justice in Luxembourg in 2015. (AP Photo/Geert Vanden Wijngaert, File)

(CN) — Despite Bulgaria’s not recognizing same-sex marriages, it should provide a birth certificate to a stateless baby whose parents are a married lesbian couple from Bulgaria and the United Kingdom, a magistrate for Europe’s top court said on Thursday.

Advocate General Juliane Kokott said the baby girl should be granted a Bulgarian birth certificate if it is determined she is a Bulgarian citizen. The baby, known as “Baby S,” is without a nationality after Bulgaria refused to issue her parents a birth certificate.

Her nonbinding advisory opinion, available only in French and Bulgarian, came in a test case before the European Court of Justice for so-called “rainbow families” in Europe whose legal status is in doubt in some Eastern and Central European countries that do not recognize same-sex marriages, such as Bulgaria.

Baby S was born in Spain in December 2019, where the couple lives near Barcelona. Spain issued a birth certificate and listed both women as the parents.

However, with neither woman a Spanish national, the baby was not provided with Spanish nationality. The baby also is ineligible for British nationality because her British mother was born in Gibraltar, a British territory, and obtained her British nationality through descent, which prevents her from passing on her British nationality.

That left the Bulgarian mother, who is identified in news reports by the pseudonym Kalina, asking Bulgaria to issue a birth certificate for Baby S so she could obtain Bulgarian nationality.  

But Bulgarian authorities said only one mother could be listed as a parent and requested Kalina to say who the biological mother of Baby S was. Kalina declined to provide that information, arguing that Bulgarian law does not require her to do so.

Bulgarian authorities refused to issue a birth certificate, citing Kalina’s refusal to say who the biological mother is. Under Bulgarian law, nationality is automatically granted if one parent is Bulgarian. They also said they could not issue a birth certificate listing two mothers because Bulgarian law does not allow same-sex marriages.

Kalina appealed to the Sofia Administrative Court and that court turned to the EU’s top court in Luxembourg to determine whether Bulgaria was breaking EU law by not registering the birth of Baby S.

Kokott advised the Court of Justice to order Bulgaria to recognize the parentage of the child “for the purposes of the exercise of the rights conferred by EU law on European Union citizens,” according to a court news release. Without a nationality, Baby S is at risk of not being able to go to school, access healthcare, receive state benefits and travel.

The magistrate also advised the court to strike a balance between Bulgaria’s right to not recognize same-sex marriages and the rights of the child and mothers.

EU law does not govern each member state’s rules relating to the establishment of a person’s civil status and her parentage, Kokott noted.

However, Bulgaria’s refusal to recognize Kalina’s marriage creates “serious obstacles to a family life in Bulgaria, even to the point of deterring [her] from returning to her country of origin,” Kokott said. She said the same applies to the child.

Thus, she said Bulgaria’s refusal to issue a birth certificate “constitutes an impediment to the rights which EU law confers” on Kalina and her child. She said ordering Bulgaria to recognize Baby S is not a threat to Bulgaria’s laws banning same-sex marriage.

Opinions from advocates general are not binding on the court but often serve as an indication how the court will rule. The court is expected to issue a ruling in the coming weeks.

Courthouse News reporter Cain Burdeau is based in the European Union.

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