A baby with lesbian parents runs the risk of remaining stateless because Bulgaria refuses to recognise two women on a birth certificate, which was issued in Spain. This is the upcoming case before the European Union Court of Justice in Luxembourg. The hearing is scheduled for February 9, 2021. A decision is expected to be passed approximately three months from then.

“If you are parent in one country, you are parent in every country,” said Ursula von der Leyen, President of the European Commission in September 2020. Sadly, this is not the case for baby Sara and her parents so far. Baby Sara was born to a family consisting of a Bulgarian and a British citizen in Spain. At birth, the child received a birth certificate listing her two mothers, but it did not specify who her biological mother was. Neither of her mothers are Spanish citizens, so the child could not acquire Spanish citizenship.

The Bulgarian mother submitted documents for the issuance of Sara’s birth certificate in Bulgaria, so she could acquire Bulgarian citizenship. Bulgarian authorities refused to issue a birth certificate for baby Sara, citing the fact that “two mothers cannot have a biological child and that issuing the certificate would be contrary to public order as Bulgaria does not recognise same-sex marriages conducted abroad.”

The two women V.M.A and C.J.K have a lawful marriage conducted in the British overseas territory of Gibraltar. Bulgarian authorities do not require proof of biological parents in identical cases where parents are of opposite sex. This indicates discrimination against the child on the basis of her parents’ sexual orientation. Bulgarian authorities also violate “the right to private and family life and the right to start a family on the grounds of sexual orientation, which violates the fundamental principles on which European Union is built.” Baby Sara’s rights to education and healthcare are also at risk.

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 “All EU citizens and their families have the right to enjoy freedom of movement,” says Aaron Avetisyan, Head of litigations at ILGA-Europe. “Article 21 of the Treaty On The Functioning Of The European Union states that all EU citizens and their family members have the right to move and reside freely within the EU. Through this case, the CJEU has the opportunity to clarify that parentage established in one member state must be recognised across the EU.

“In 2018, the CJEU delivered a judgement on the Comancase, saying that the definition of ‘spouse’ in EU law on freedom of movement includes same-sex couples. Therefore, “arguments on ‘constitutional identity’, namely that Bulgaria does not recognise rainbow families, cannot justify a violation of EU law.”

The hearing of baby Sara stands to determine the future of rainbow families within the European Union. Keeping baby Sara and other children like her. The Network Of European LGBT Families Association (NELFA) has started a “free movement for rainbow families” campain.

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