Same-sex parents birth registration refusal case brought before ECtHR

Two women (a Polish and UK national) and their child have submitted an application to the European Court of Human Rights in Strasbourg, bringing a case against Poland after Poland’s authorities had refused to issue a Polish birth certificate for their child. The applicants are represented by Dr Dorota Pudzianowska, HFHR, and Dr Joanna Miłkowska-Rębowska, advocate.

Maria M. was born in 2011 in the United Kingdom. Her British birth certificate identified Katherine M. as her mother and Zofia M. as her parent.

The Registrar of the Registry Office in Łódź refused to enter Maria’s birth into the Register of Births. The girl’s parents appealed to the Łódź Province Governor but he upheld the registrar’s decision. Following the registrar’s line of argument, the Province Governor concluded that Polish legal system does not legitimise partner couples and applicable law reinforces the traditional model of a family. The Governor also contended that a transcription of the UK birth certificate into Polish registry records would result in the creation of a civil registry document that would be incompatible with the basic principles of Polish legal system.

Kathrine M. and Zofia M. lodged a complaint with the Provincial Administrative Court in Łódź. The complaint was dismissed, both by the PAC and, on appeal, by the Supreme Administrative Court, which held that pursuant to the current law, a minor may legally be considered the child of different-sex parents. This, according to the Court, prevents a transcription of a foreign birth certificate that identifies same-sex partners as parents.

In their application to the ECtHR, which was filed on 16 June, Katherine M. and Zofia M. allege that Poland violated Convention Article 8 (which grants the right to privacy and family life) and Article 14 (which establishes the prohibition against discrimination).

In particular, the applicants argue that by refusing to recognise a relationship of affinity between a child and two parents of the same sex, the authorities violated the child’s right to privacy. “No transcript of the birth certificate causes uncertainty as to the child’s entitlement to Polish nationality, which is legally obtained if one of the parents is a Polish citizen”, Dr Pudzianowska says. “The absence of a transcript and a refusal to officially acknowledge a relationship between a parent and a child may also affect other legal rights such as inheritance rights or mutual rights and duties of parents and children”, she adds.

The denial of the transcription of a birth certificate is obviously and directly connected to the fact that Maria’s parents are of the same sex. In accordance with the existing case law of the Strasbourg Court, states have no obligation to legalise same-sex partnerships. However, the same case law prohibits discrimination based on sexual orientation.

“There would be no controversy whatsoever, if the parents had been of different sexes. Therefore, this case clearly involves the parents being treated in a different manner because of their same sex relationship”, explains Dr Dorota Pudzianowska.