Top Polish Court: Registry Must Accept Birth Certificate of Child with Same Sex Parents

The Supreme Administrative Court has decided on the case involving the transcription of a foreign birth certificate in which two women are listed as parents. Registration was necessary to protect the rights of the child, the court has said.

Two Polish women registered their child, who was born in the United Kingdom, in the Polish civil registry records. The UK birth certificate lists the two women as the child's parents. The Head of the Registry Office in Kraków originally refused to transcribe the birth certificate, arguing that it was incompatible with fundamental principles of Polish legal order. The child’s mother challenged that decision, and in October 2018 the Supreme Administrative Court (SAC) ruled that the transcription of a birth certificate was admissible. The SAC overturned the unfavourable decision and the Head of the registry office was forced to revisit the case. Finally, in December 2018, the registry office transcribed the child’s birth certificate in line with the court judgement. But the story wasn't finished, as a prosecutor took the view that this decision violated Poland’s ordre public and challenged the transcription before Provincial Administrative Court (PAC) in Kraków.

Good of the child is the most important says court

In its judgement of 10 October 2018 the SAC emphasised that the refusal to transcribe the birth certificate was a violation of the child's rights, which are enshrined in the Polish constitution, the Convention on the Rights of the Child, and the European Convention on Human Rights. Referring to EU law and judgements of the Court of Justice of the European Union, SAC stated that the obligation to transcribe a birth certificate, carried out for the sole purpose of protecting the rights of the child and certifying their identity, did not contravene the fundamental principles of the Polish legal system and the principles of public order. Accordingly, the SAC expressly ruled that it was admissible to transcribe the birth certificate.

HFHR intervenes

The HFHR made an intervention in the case, appearing at the proceedings before Kraków’s PAC. The foundation stated that it was impossible to reconsider the transcription of the child’s foreign birth certificate from the public order perspective. It argued that the circumstances of the case were definitively clarified by the SAC in its judgement. The HFHR argued that the Head of the Registry Office and the PAC in Kraków were bound by the Supreme Administrative Court's assessment. Repealing the birth record of a child would undermine the final and binding judgement of the SAC, which also would be incompatible with Article 6 of the European Convention on Human Rights (which guarantees the right to a fair trial) and the principles of a democratic state ruled by law. The HFHR also argued that impeding the transcription of a foreign birth certificate must be considered a violation of rights guaranteed by the Polish Constitution and international law, including EU law.

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