• 22/11/2022
• By wizewebsite
• 435 Views

How little Sara and the decision of the European Court of Justice changed the lives of us all<

Do you have children and do you ever plan to travel with them outside the borders of the Czech Republic? Do you have a foreigner as your partner? Are you planning to adopt a child abroad? If so, then the recent decision of the Court of Justice of the European Union, which ordered Bulgaria to recognize a family consisting of two mothers and their daughter Sara, applies to you too. Maybe more than you think. Has the ruling solved the problems of the rainbow families? Will it improve the lives of opposite-sex couples and their children? Let's talk about it right from the beginning.

Kalina is Bulgarian and Jane is British born in Gibraltar (names have been changed). They met, fell in love and started a family. Little Sára was born to them. They all live together in Spain, where the two women also got married in 2018 (Spain has allowed marriage for everyone since 2005). In the birth certificate issued by the Spanish authorities, Sára lists both women as mothers. So far it sounds like a fairy tale. But there is a catch. Since neither Kalina nor Jane are Spanish, Sára does not have Spanish citizenship. She cannot have British citizenship because Jane is from Gibraltar and in the circumstances her British citizenship cannot be transferred to Sarah. But she has Bulgarian citizenship, because Bulgaria automatically grants citizenship to children born to Bulgarian citizens. Good, you say, Sára is saved from legal uncertainty, she has Bulgarian citizenship. Unfortunately, trouble is lurking around the corner.

Non-heterosexual people are not infertile. Many of them want children and have them. Bulgarian (and also Czech) law plays the role of a blind social engineer.

Unlike the vast majority of democratic countries in the world, Bulgaria (like the Czech Republic) does not allow same-sex marriage or joint parenting in its domestic law. The law tries to create the fiction that rainbow families do not exist. But they exist. Non-heterosexual people are not infertile. Many of them want children and have them. The fact that Kalina fell in love with Jane did not magically erase her desire for a child and a family. The fact that Bulgarian law does not recognize two women as full-fledged parents does not mean that their functioning and happy family ceases to actually exist, that Sára ceases to perceive both of them as her parents. Bulgarian (and also Czech) law here plays the role of a blinded social engineer, who humanely keeps his blinders on his eyes as hard as he can, just so he doesn't have to see reality. The reality in which rainbow families are and will be – happy and functioning. And the only thing they would like is for the law to stop throwing sticks under their feet.

In the interests of public order

In order for Bulgaria to issue an identity document - a passport or an ID card - to Sara, a Bulgarian birth certificate is required under Bulgarian law. But the Bulgarian authorities refused to extradite her, because recognizing both women as mothers would, according to them, have "an adverse effect on public order and the national identity of the Republic of Bulgaria". And since Sára cannot leave the territory of Spain without a personal document, the family could not travel out of Spain, either on vacation, to visit grandparents, or for work.

Even an ordinary citizen knows that one of the main benefits of the European Union for its citizens is the ability to move freely from one member state to another. I still remember communism and how my parents and I stood in line at the border crossing in Petrovice and were afraid if the customs officers would let us go on our dream shopping trip to East Germany. And on the way back, we prayed that they wouldn't confiscate the salami cones we had bought. Not only do we no longer have to experience these annoying and humiliating situations thanks to the European Union. Movement between states is free, checks are random and a citizen's card is all you need. You can easily go on vacation to France and Croatia. You can go abroad to study or work. If you have a family, you can take them with you.

The fight for the right to marry

Mr. Pavlo was 81 years old when he died in April this year without ever ceasing to be a second-class citizen. I am 40 years old and I can still only register, like a car. Little Alex was barely half a year old when the Marriage for All Act was introduced 2.5 years ago. Soon, her two moms will take her to kindergarten, and the law has never been voted on. Why and for whom is it taking so long?

Adéla Horáková: How many more generations are we sacrificing? We have been waiting three decades for marriage for all

Bulgaria has been part of the European Union since 2007. As is common in quasi-federations of the European Union type, there is a supreme judicial instance that oversees compliance with European Union law. In our case, it is the Court of Justice of the European Union (CJEU). And that's exactly what the Bulgarian court asked: Is Bulgaria violating European Union law by refusing to issue Sara a birth certificate because her parents are two women? Specifically, it was about whether it violates Articles 20 and 21 of the Treaty on European Union (right to EU citizenship, right to freedom of movement within the EU) and Articles 7, 24 and 45 of the Charter of Fundamental Rights of the European Union (respect for private and family life, children's right to protection and care, the right to free movement and residence).

In the interest of the child

In the whole story, two levels need to be distinguished - to put it very simply, it is EU law and the domestic law of the member countries. The first is something that forms the basis of the entire EU and must be respected in every member state. It does not include all areas of life, only what the member states have agreed to be within the competence of the EU. The second level is purely domestic and refers to areas in which the EU has no powers and member states can do whatever they want.

The answer of the CJEU was unequivocal - yes, Bulgaria violates EU law. The court sided with protecting children and their families from bureaucratic discrimination. In doing so, he fulfilled the statement of the President of the European Commission, Ursula von der Leyen, during her solemn annual State of the Union speech: if someone is a parent in one EU country, he must also be recognized as a parent in another member state. The CJEU reiterated what has long been clear in the law – that rainbow families have the same right to protection and respect for their family life and privacy as families formed by different-sex couples.

Furthermore, in response to the Bulgarian court's argument of "public order and national identity" as a reason for refusing to recognize the parentage of both mothers, the CJEU stated that "public order" must be interpreted narrowly and is not at risk in this case. It would only be threatened if there was a "genuine and sufficiently serious threat to the fundamental interests of the company". Which clearly isn't acknowledging the existence of the rainbow family.

Bulgaria still has the right to decide whether to allow marriage for all and shared parental rights for same-sex couples in its national law.

The CJEU has assured Bulgaria that it still has the right to decide whether to allow marriage for all and shared parental rights for same-sex couples in its national law. At the same time, Bulgaria must recognize the parental rights granted to same-sex couples in another EU member state to the extent related to the exercise of the child's rights resulting from EU law. So the CJEU ordered Bulgaria to issue Sara an identity document (how Bulgaria arranges it with the Bulgarian birth certificate is up to him) and to recognize that Kalina and Jane are her mothers, in any case regarding Sara's rights arising directly from EU law.

What rights are these? There is a lot of talk about freedom of movement in connection with this judgment. That makes sense. When we decide where to travel or where to live, of course whether our family is recognized by the state also plays a big role. We do not want to go to a country where our family is threatened with discrimination and non-recognition. Our freedom of movement is therefore directly limited by the fact that a state does not recognize our family.

In addition to freedom of movement, however, according to the CJEU, member states must respect all the rights of children as EU citizens resulting from EU law. For example, the right to protect family life and privacy, children's right to care, protection, to express their opinions (appropriate to their age) and to maintain regular personal relationships and direct contact with both parents (if it is in his interest). Of course, "parent" means both biological and adoptive parents - both in the case of different-sex and same-sex couples.

Why is a registered partnership not enough?

Listen to an interview with Adéla Horáková, a lawyer from the Jsme fér initiative, in the Hlas Heroine Podcast.

So what is the answer to the questions we asked ourselves at the beginning? For rainbow families, this decision confirmed their rights as EU citizens. For example, if two men or two women, at least one of whom is a Czech citizen, adopt a child abroad and the local authorities recognize both women or both men as parents (which is basically what all of Western Europe does), they must also be recognized as a family in the Czech Republic . In relation to their rights under EU law. Also important is the opinion of the CJEU that public order (which Czech law also uses as a reservation) is not disturbed by the state recognizing a rainbow family founded abroad. I hope that the judges of the Czech courts will choose the same approach.

But we can't put our feet on the table. This judgment only concerns EU law, not domestic law under the exclusive jurisdiction of member states. This does not mean that the Czech Republic would have to introduce marriage for all or joint parental rights of same-sex couples into its law. It only applies to cases where parents acquire parental rights abroad. Which is still a relatively small group of people.

Changes in the Czech family

Czech family changes have a great inertia behind social changes. However, even this "foundation of the state" does not remain static and reflects not only the development of our life desires, but also the real possibilities to fulfill them. The new Report on the Family provides us with detailed data for this.

Research on the Czech family. We condemn childlessness, deal with housing and look for active fathers in vain

In the interest of all families

And what if you are a couple consisting of a man and a woman, does the judgment affect you in any way? It concerns. It works two-way – from the Czech Republic outwards and from abroad towards the Czech Republic. In the first case, the CJEU confirmed that if you are recognized as a parent under Czech law, other member countries must also respect this. Even if the given foreign country regulates marriage and parenthood of different-sex couples differently than the Czech Republic. There probably won't be many such cases, but nowadays, when some aspects of life in Poland or Hungary are returning to the values ​​of the Middle Ages, nothing is unimaginable. Proposals to abolish the possibility of divorce have appeared in recent years even in our country.

The second effect for heterosexual couples and their children consists in the impact from abroad into the Czech Republic. Although the CJEU did not explicitly address it, I believe that its conclusions could similarly be applied to unmarried heterosexual couples. In the Czech Republic, only married couples are allowed to adopt a child together. Likewise, adoption is only allowed between spouses (ie one adopts the other's child). Unmarried couples cannot adopt a child together, nor can they adopt a child. This is actually about the privilege of married couples over unmarried ones. At the same time, however, half of the children in the Czech Republic are born to unmarried couples. So there is a significant group of people who do not consider marriage necessary to start a family. If there was a state within the EU that allows joint parental rights even for unmarried couples, and a heterosexual couple made up of at least one Czech man or Czech woman would use such an option, I believe that their parentage should also be recognized in the Czech Republic.

The European Union is a wonderful and unique project. Reconciling the level of development, the interests of individual countries and the common values ​​of the EU is not always easy. The CJEU has a difficult role in this. I think he has handled it very well in this case to the benefit of all families in the EU. Although there are quite understandably differences in the perception of many issues between individual countries, hopefully they can all agree that protecting children is a priority. And if children grow up in a functioning, satisfied family, it is in their interest that such a family is respected and recognized by law in all countries of that unique space of freedom without internal borders that we call the European Union.