Parentage of Same-Sex Persons in the Jurisprudence of the Court of Justice of the European Union – Commentary to the Judgment of CJEU of 14.12.2021, C-490/20

In its judgment of 14 December 2021, the Court of Justice of the European Union ruled that in the case of a child who is a Union citizen and whose birth certificate, issued in the host Member State, designates as that child’s parents two persons of the same sex, the Member State of which that child is a national is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the EU territory. In its commentary, the author supports the CJEU ruling, observing that it continues the line of reasoning adopted in the Coman case of 2018. The Court attempts to strike a balance between the EU freedoms and the necessity to respect the national identity of Member States that are free to shape their family law without accepting the liberal concepts such us parentage of same-sex persons or homosexual marriages. Additionally, when wondering about the consequences of the ruling for Poland, the author puts forward a thesis that the current practice of Polish organs, resulting from the resolution of the Supreme Administrative Court of 2 December 2019, is consistent with the EU law. Although children of Polish nationality, with same-sex parents, cannot expect their foreign birth records to be transcribed into the civil status register in Poland, they may nevertheless obtain a Polish identity card or passport.