Supreme Administrative Court, Case II OPS 1/19

Parties (including notable third parties)

M. Z. (The Applicant); Voivode (The Respondent); The National Ombudsman (Third Party Intervener); Public Prosecutor General (Third Party Intervener)

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Summary of Facts

This judgment is an answer to a question forwarded from the panel of judges of the Supreme Administrative Court hearing the relevant case to a larger panel of judges within the same court mandated with answering contradictory or complex legal questions. The question essentially enquired whether Polish law allows for transcription of a foreign birth certificate where both parents listed are of the same sex.

The case in the main proceedings that led to the question was initiated by an Applicant who was listed as one of the mothers on her son’s birth certificate. Both mothers are Polish nationals. The Respondent (the Polish authorities) refused to transcribe the birth certificate into the Polish civil status registry, on the basis that it would violate the fundamental principles of the Polish legal system.

The Applicant also applied for a passport for her child, but the application was not considered because of the failure to submit a transcribed Polish birth certificate.

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Legal Arguments

In justifying the question presented, the adjudication panel of the Supreme Administrative Court pointed to the discrepancy in the jurisprudence of administrative courts regarding the lawfulness of transcription of a foreign birth certificate in which same-sex persons are listed as parents.

Two lines of jurisprudence exist in Poland on this issue. Under the first line of jurisprudence, such transcriptions violate the fundamental principles of the Polish legal order. This line of jurisprudence relies, among others, on case law based on the European Convention on Human Rights (‘ECHR’) that allows restricting access to marriage for same-sex couples, and therefore refusal to register a birth certificate with two same sex parents does not constitute discrimination on the basis of sexual orientation. Under the second line of jurisprudence, the refusal to transcribe such a birth certificate constitutes a violation of the rights of the child as codified in the Convention on the Rights of the Child (‘CRC’).

The judges submitting the question also referred to the Supreme Administrative Court judgment of 29 August 2018, concerning the transcription of a foreign birth certificate of a child born through the use of an in vitro procedure and a surrogacy agreement. In this case, the Supreme Administrative Court refused the transcription based on the public order clause, arguing that such transcription would violate children’s rights as guaranteed by the CRC.

Legal arguments by the Applicant

The Applicant argued that the authorities failed to respect children's rights, and in particular violated Article 8 in conjunction with Article 14 of the ECHR with regards to the Applicant, her son, and her partner, and also breached Article 2 of the CRC. The Applicant argued that her child was discriminated against due to the legal status and sexual orientation of his parents (the legal status being the status of non-heterosexual cohabitation in Poland). Moreover, the best interests of the child had not been protected. The lack of transcription of the birth certificate resulted in difficulties in obtaining proof of nationality, leading to a factual situation that was identical to that of statelessness of the child. The child’s right to identity, which includes his Polish nationality, and respect for his relationship with his parents, had been violated.

The Applicant moreover invoked Article 20 of the Treaty on the Functioning of the European Union (‘TFEU’), as the authorities’ decision limited the child’s ability to move and reside freely within the Member States of the EU, as the child is unable to access travel documents. In addition, the Applicant invoked a violation of Articles 7, 21(1) and 24(2, 3) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

Legal arguments by the Respondent

The Respondent argued that, under Polish law, the mother of a child is the woman who gave birth to that child. Regardless of how paternity is established, the only other parent is the father, and it is always a man. Deviations from this would violate fundamental principles of the Polish legal order.

Third Party Interventions

The National Ombudsman intervened on behalf of the Applicant, arguing that the refusal to transcribe the birth certificate of a minor Polish national violated his right to nationality and identity, and, as a consequence, may also lead to a violation of the right to health, the right to education, the right to liberty and security, and the right to freedom of movement and choice of place of residence. Moreover, he argued that the fundamental principles of the Polish legal order are not endangered by the transcription of a birth certificate into Polish civil status registers where the parents are of the same sex. The Ombudsman also noted that the refusal to transcribe the birth certificate impeded the way to an effective application for an identity document, the latter being necessary for free movement within the territory of the European Union.

The Public Prosecutor General intervened on behalf of the authorities, arguing that the authorities have correctly honoured the public policy clause. He requested the Court to find that Polish law does not allow the transcription of a foreign birth certificate of a child in which same-sex persons are recorded as parents, which does not prevent the child from being assigned a social security number and being issued a Polish identity document. According to the Public Prosecutor, refusal to transcribe the birth certificate does not lead to unequal treatment or discrimination against children over whom persons of the same sex obtained parental rights abroad. Such children should be guaranteed equal rights, including the right to obtain a social security number, an ID card, and a passport. The practice of public administration bodies, which makes it impossible to implement these rights, is inconsistent with the applicable Polish law.

Outcome

The Supreme Administrative Court recalled the dominant position in legal literature, which is that transcription is not in itself a registration, it is a declaratory act that merely reproduces and copies a foreign civil status record. It does not have any constitutive effect. As a rule, an act submitted for transcription is only verified with regards to determination of paternity. The law does not provide for the possibility to leave the field ‘father’ blank.

Polish law contains a public order clause which provides a safeguard to prevent the effects of application of foreign law from resulting in a violation of the national legal order. If recognition of a civil status record constituted abroad would breach the fundamental principles of the Polish legal order, the transcription can be refused. A crucial point is not the mere contradiction between a foreign civil status record and the fundamental principles of the legal order, but that the effects of transcribing such record are incompatible with these principles.

For these purposes, the basic principles of the legal order include the fundamental principles of the socio-political system and the guiding principles governing civil, family and procedural law. According to Article 18 of the Constitution, marriage is a union between a woman and a man, and family, motherhood and parenthood are under the protection and care of the Republic of Poland. In Polish law, only the mother and the father may be the parents of a child, and a female person cannot be entered as a father in a Polish civil status certificate. The Polish legal system does not foresee any other category of a parent. Polish law also does not recognise the concept of ‘same-sex parents’, only spouses can jointly adopt a child jointly, and the recognition of adoption of a child by persons of the same sex is inadmissible. The court found that ‘the coherence of the Polish legal system would be threatened with the effects of a Polish birth certificate that contains data that cannot be included in the certificate of a birth of a child in Poland’, and ‘in summary, it is not possible to enter a ‘parent’ who is not a man in the Polish civil records instead of the child’s father, as such a transcription would be contrary to the fundamental principles of the Polish legal order’ (paragraph 7).

The Court then analysed the child’s entitlement to a Polish identity document. The Applicant had initiated proceedings for the issuance of a passport for her child, but due to the impossibility of presenting a copy of a Polish birth certificate the application was not examined. The Court held that ‘every Polish national has the right to receive a passport’ (paragraph 8); therefore, the Applicant has the right to appeal the final decision to refuse issuance of a passport to an administrative court. The Court noted that while the application for a passport requires a PESEL number, it is possible for a consul to issue a temporary passport to a Polish citizen born abroad without including a PESEL number in the passport.

The Court further noted that ‘every national has the right to receive an identity card, which is also a document confirming identity and Polish nationality’ (paragraph 8), and the authority issuing the identity document is responsible for requesting the assignment of a PESEL number. The Court concluded that if the refusal to transcribe is justified, as is the case under examination, the authority is obliged to act in accordance with the best interests of the child and apply for a PESEL number for the child. It concluded that the issuance of an identity document or PESEL number cannot depend on the transcription of the birth certificate only because it names another woman as a parent instead of the father.

The Court recalled that the European Court of Human Rights (‘ECtHR’) addressed the consequences of refusing to register foreign birth certificates of children of same-sex couples and children born through surrogacy. The jurisprudence of the ECtHR does not indicate a general obligation to transcribe foreign birth certificates of children whose parents are in a same-sex partnership. It pointed to the advisory opinion no. P-16-2018-001, issued with regards to a child born abroad as a result of a surrogacy arrangement to a French man and a woman who were married to each other, and where the child had a biological link to the father.

In the case before the Polish Supreme Administrative Court, the Applicant demanded that the relationship between her child and her partner be recognised in the transcribed civil status act, where the relevant partnership is not recognised by Polish law. The request for transcription does not apply to a civil status certificate in which the indicated parents are married, and in which one of the spouses is the biological parent of the child.

The Supreme Administrative Court considered that the jurisprudence of the ECtHR focuses primarily on the consequences of the failure to transcribe the child's birth certificate, and it should therefore be considered that the provisions of the ECHR must be taken into the lack of protection against the negative consequences of the lack of transcription. These effects, however, will be assessed in separate individual proceedings, for example in the context of potential refusal to issue an identity card. […] The refusal to make a transcription due to a breach of the principles of the Polish legal order is not tantamount to a breach of the constitutional and international obligation of public authorities to take into account the best interests of the child, because a foreign birth certificate, even without its transcription, is the only evidence of the events stated therein, and the Applicant's child may rely on such an act in administrative and court proceedings that concern his rights’ (paragraph 9).

With regards to the jurisprudence from the Court of Justice of the European Union, the Court held that so far it indicates that legislation on civil status falls within the competence of the Member States and EU law does not prejudice this competence (citing Garcia Avello, C-148/02, Maruko, C-267/06, and Grunkin and Paul, C-353/06). Moreover, the lack of harmonisation of the provisions on civil status at the EU level means that solutions adopted in this area in individual Member States differ, EU law does not provide for an absolute obligation to recognise the effects of a foreign civil status record, and the refusal to transfer a foreign document to the national register of civil status may be justified by the application of the national public order clause. It further noted that the right to free movement within the Schengen area does not depend on the possession of a transcribed birth certificate, but on the possession of an identity document proving the nationality of one of the EU Member States (under Article 20(2)(a) and 21(1) of the Treaty on the Functioning of the European Union). As such, an infringement of the right to free movement can only be considered after a refusal to issue a Polish identity document or a passport. Therefore, the Supreme Administrative Court did not find grounds for referring a question for a preliminary ruling to the Court of Justice of the European Union.

The Supreme Administrative Court concluded that Polish law does not allow the transcription of a foreign birth certificate of a child in which the parents are persons of the same sex, but that the lack of transcription should not impede such a child's access to a passport and other identity documents, and that his Polish nationality was unquestionable.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Convention on the Rights of the Child
Regional	European Convention on Human Rights	Article 8
Regional	Treaty on the Functioning of the European Union	Article 20(2)(a) and 21(1)
Domestic	Constitution	Article 18
Domestic	Civil Code	Article 7, 104 and 107

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Aleksandra Wasielewicz, 'Obecne orzecznictwo sądów polskich w kwestii stosowania wyłączenia ‘klauzuli porządku publicznego’ (ordre public) w przypadku transkrypcji (rejestracji) zagranicznego aktu urodzenia w polskim rejestrze stanu cywilnego' (2021) 28 Problemy Prawa Prywatnego Międzynarodowego 163

• Wasielewicz first outlines the evolution of the transcription case law in Poland, then characterises this resolution as a ‘conservative standpoint’ that ultimately prioritises the coherence of the Polish legal order and the traditional understanding of parenthood derived from Article 18 of the Constitution over the recognition of family relationships lawfully established abroad, and she suggests that while this outcome may disappoint advocates of LGBT family rights, it was consistent with the prevailing interpretative framework of Polish family law.
• She observes that despite the resolution's intention to settle the law, its enforcement in practical terms was far from obvious and administrative authorities still have been demanding to submit Polish (transcribed) birth certificate in order to issue identity documents. She notes that the Commissioner for Human Rights criticised this situation, arguing that ‘the adopted resolution does not prioritize the best interests and rights of the child but transfers to the citizen the burden of demanding legal protection.’
• She concludes that while the resolution aimed to settle doubts and undoubtedly has brought to an end the legal impasse on the legal situation of minors raised by same-sex couples, she acknowledges that ‘the approach on the matter of transcription adopted by the SAC... may be disappointing for those who asserted the rights of same-sex couples as the ruling in question may not meet their expectations.’ She nevertheless finds reason for optimism, expressing that ‘the resolution should be approved for the reason that it aimed to solve several practical problems by allowing the issuance of necessary documents.’