Bulgaria must find a way to allow the stateless baby of a same-sex couple from Bulgaria and Gibraltar to travel, a legal adviser of EU’s top court said Thursday (15 April).
The sixteen-month-old baby girl was born in Spain and given a birth certificate listing her two mothers as parents but she could not receive Spanish citizenship as neither of the two women is Spanish.
British law does not allow the Gibraltarian mother to pass on her British citizenship if the baby is born in a third country.
Bulgaria does not allow same-sex marriage and does not recognise same-sex marriages conducted abroad, so Bulgarian authorities also turned down a request for citizenship.
They insisted that according to national law, the baby’s birth certificate cannot include two people of the same sex and should only list her biological mother.
In a non-binding opinion issued Thursday, the European Court of Justice’s Advocate General Juliane Kokott recommended that “a balance be struck between the national identity of the member states and the right to freedom of movement of the child and of his or her parents”.
Kokott said that even if Bulgaria may justify its refusal to recognise the parentage of the child by its national law, it still “must issue her with an identity document or a travel document… in order to allow the child to travel with each of her parents individually”.
A birth certificate is a prerequisite for the issuing of any identity document in Bulgaria so Kokott added that “a refusal to issue it would therefore undermine the effective exercise of the child’s right to freedom of movement”.
“Bulgaria must recognise the (parentage) connection between the child and her two mothers,” the Bulgarian mother’s lawyer Denitsa Lyubenova said Thursday.
“We will continue to put pressure on Bulgaria in order to make this happen.”
An EU court ruling is expected later this year, but whatever it decides, the legal battle to provide the baby with citizenship and ensure its right to travel will be referred back to a court in Sofia.
In the meantime, the girl will not be able to leave Spain.
The lawyers say their legal battle might be a test case for thousands of same-sex parents, whose children are at risk of citizenship limbo because of legislative differences across the EU member states.