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E.U. members must recognize familial ties of same-sex couples and their children, top court rules

An activist carries a rainbow flag during a 2013 gay pride rally in Sofia, Bulgaria. (Valentina Petrova/AP)

Children of same-sex couples recognized in one European Union country should be recognized by all members to guarantee their free movement, the European Union’s top court ruled Tuesday, giving a boost to the rights of same-sex parents across the continent.

The case was sparked by Bulgaria’s refusal of citizenship to the infant daughter of a same sex couple. The girl, Sara, was born in Spain. One of her mothers was born in Bulgaria, the other in Gibraltar, a British territory.

Under Spanish law, Sara, who was born in 2019, cannot get citizenship in Spain because neither of her mothers is of Spanish descent. She was also denied British citizenship because people born in Gibraltar cannot transfer citizenship to their children, according to the British Nationality Act of 1981.

Bulgaria’s refusal to issue a birth certificate risked leaving the child stateless and unable to leave her country of residence, Spain. Same-sex marriages and unions are not recognized in Bulgaria.

Europe’s deepening divide on gay rights

The European Court of Justice’s landmark ruling Tuesday found that if one country recognizes a child’s parental relationship, then every other member of the 27-nation bloc should do the same to guarantee the exercise of the child’s right to free movement within the E.U.

Bulgarian authorities are now compelled to issue a passport or identity card to Sara, which should be recognized by EU member states.

“We are thrilled about the decision and cannot wait to get Sara her documentation and finally be able to see our families after more than two years,” Sara’s parents said in a statement posted on ILGA Europe, an LGTBI rights group that offered strategic legal support in the case. “It is important for us to be a family, not only in Spain but in any country in Europe and finally it might happen. This is a long-awaited step ahead for us but also a huge step for all LGBT families in Bulgaria and Europe.”

Arpi Avetisyan, head of litigation at ILGA Europe, said in a statement the ruling “has brought long-awaited clarification that parenthood established in one EU member state cannot be discarded by another, under the pretense of protecting the ‘national identity.’ ”

“Implementation is the crucial part, which often is also the difficult and time-consuming one,” Avetisyan told The Washington Post. “While the court has required Bulgaria to issue the child with a passport or an ID document, it is now up to the Bulgarian authorities to come up with a solution and the type of document,” which might take time and involve additional hurdles.

Avetisyan said that if countries refuse to implement the court’s judgment, the European Commission can take legal action.

A 2018 ruling by the European court established that all member countries had to recognize same-sex marriages of E.U. and non-E.U. citizens for the purpose of immigration.

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