Administrative Court: Children of same-sex married couple not to acquire Polish citizenship

Children of a same-sex married couple in which one spouse is a Polish national do not have Polish citizenship, decided the Provincial Administrative Court in Warsaw. The court stated that the Province Governor and the Minister of the Interior reasonably refused to acknowledge that the children are Polish nationals. On the request of the HFHR the clients were represented pro bono by Dr Paweł Marcisz, an advocate with Łaszczuk i Wspólnicy sp. k.

X, a citizen of Poland and Australia, demanded a certificate of Polish citizenship for four of his children. According to foreign birth certificates, he is one of their parents. The children were born in the result of surrogacy, which is legal in the place where the surrogacy procedure was conducted and were raised by a single-sex married couple of X and Y. The marriage was concluded beyond the Polish border.

The Polish Citizenship Act provides that one of the most important principles for acquiring Polish citizenship is a situation in which at least one of the parents of a child is a Polish national.

The court stated that foreign birth certificates according to which X is one of the fathers cannot be treated as documents which confirm the parental relationship of X with the children, which would entitle them to acquire Polish citizenship. According to the court exclusion of these documents was justified while their acceptance would result in a situation conflicting with the basic principles of the legal order. Hence in reality there were no evidence which would allow to determine the parents of these children.

“Questioning foreign birth certificates and hence undermining the parent-child relations established in a third country is contrary to the best interests of a child. A refusal to recognise the Polish citizenship is a direct result of the court’s reasoning but such a decision undermines the very essence of a child’s right to an identity”, said Dorota Pudzianowska, a lawyer working with the HFHR.

The judgment is not yet final.