The case concerns the refusal by the Head of the Civil Registry Office of Kraków (Poland) to transcribe into the Polish register of civil status the birth certificate of the daughter of K.S. and her wife S.V.D., issued by Spanish authorities. This lack of registration hindered the issuance of a passport, which impacted the child’s freedom of movement.
The Court interpreted Articles 20 and 21 of the TFEU, to mean that the Member State of which a child of a same-sex couple is a national (i) is obliged to issue to that child an identity card or a passport without requiring the prior transcription of a birth certificate of that child into the national register of civil status, and (ii) is obliged to recognise the document from another Member State that permits the child to exercise, without impediment, the right to move and reside freely within the territory of the Member States.
Bulgarian authorities refused to issue a birth certificate to the daughter of a Bulgarian mother and a British mother, who was born in Spain and issued a Spanish birth certificate with the names of both mothers, on the basis that it could only recognise parents of different genders. The Court found that where a birth certificate issued in another Member State designates parents of the same sex, the Member State of which the child is a national is required to issue an identity card or a passport to the child, without requiring a birth certificate to be drawn up beforehand by its national authorities. It also held that the Bulgarian authorities, and any other Member State, must recognise the parent-child relationship as established by the Spanish authorities for the purposes of permitting the exercise of the child’s right to move and reside freely within the EU, and any documents that would allow such travel.
The applicants are children born presumably in a surrogacy arrangement in Ukraine to two Austrian nationals. Even though the custody of the commissioning parents over the applicants was confirmed under the Austrian law, their parentage and consequently the Austrian nationality of the applicants was initially denied. The Court considered that the best interests of the child prevail in such a case over the prohibition of surrogacy under Austrian law, and confirmed the applicants' right to Austrian nationality.