The decision of the Supreme Administrative Court
On 01.03.2023, the Bulgarian Supreme Administrative Court issued a decision, which essentially means that:
A child born abroad to a woman (non-Bulgarian citizen) who has a same-sex marriage with another woman (Bulgarian citizen) IS NOT A BULGARIAN CITIZEN.
We fully share the court’s conclusion, but at the same time we fear that similar cases in future will create very unpleasant precedents. The problem is that the Bulgarian legislation in the field of “gender ideologies” is deviating more and more from that of some other EU countries.
The question is which will be the right choice for the Bulgarian society. To act like a wolf or not to gather with wolves. Because in future, same-sex marriage problems will deepen, in the context of the rapidly evolving (Western) European values.
The problem of the child with the two mothers
We will explain the problem below:
The birth of the child
In 2019 in Spain, a child is born to the family of two women – a Bulgarian1 and a British. The two women have same-sex marriage in Spain, where the law recognizes such marriages. The child’s birth certificate, issued in Spain, states that the child has two mothers.
1 For brevity, we use the term “Bulgarian” as equivalent to “Bulgarian citizen”, although this is not entirely accurate from a legal point of view (see why).
The citizenship of the child
Britain refuses to issue a passport to the child, arguing that it is not a British citizen. According to Euractiv, the two women claim that Spain cannot issue citizenship to the child neither, because they are not Spanish.
Why is the child not Bulgarian citizen neither
According to the decision of the Supreme Court, generally speaking, the child is not a Bulgarian citizen because it was not physically born to a Bulgarian woman. As we wrote above, the biological mother of the child is the other woman – the British. The court, quite correctly, refers to the provisions of the Bulgarian Family Code:
The maternal descent is determined by the birth. The child’s mother is the woman who gave birth to the child, including in assisted reproduction.art. 60, par. 1 & 2 from the Bulgarian Family Code
Since the child was born to the British citizen, it is not originating from a Bulgarian mother. The child does not originate from a Bulgarian father either (Art. 61 of the Family Code), since there is “no” father at all. The latter in itself is a legal absurdity, which we will not discuss in this article.
For the above reasons, the Supreme Court decided that there is no legal ground for the child to receive Bulgarian birth certificate, since it is not a Bulgarian citizen.
Citizen of what country is the child?
Although the “mothers” claim that Spain refuses to recognize the child as a Spanish citizen, the Bulgarian Court concludes that it should acquire Spanish citizenship at birth. The Court, quite rightly, points out that the question of the child’s Spanish citizenship is beyond its competence, but cites strong arguments for its conclusion:
Spanish citizens by origin are persons born in Spain to parents who are foreigners, if at least one of the parents was born in Spain, with the exception of the children of diplomatic or consular officials accredited to Spain, or if both parents are stateless, or the national legislation of none of them grants citizenship to the child.art. 17 of the Spanish Civil Code of 24 July 1889 (quotation from the opinion of the Kingdom of Spain in case C-490/20)
As the child doesn’t acquire neither Bulgarian nor British citizenship, according to Spanish law, he should indeed be able to acquire Spanish citizenship. However, this is probably not so easy, since the “mothers” claim that they were denied such.
The problem for the Bulgarians
In our opinion, the main problem in such situations in future will be when a child is born in a country that does not have a legal provision, such as that of Spain, by virtue of which it should be able to acquire Spanish citizenship. Then, in practice, the child will remain stateless – apatride. The problem with children from two “fathers” will be even more complicated.
We believe that Bulgaria should fully adhere to its moral norms and family traditions. And these are objectified, very precisely, in the Bulgarian Constitution:
The marriage is a voluntary union between a man and a woman. Only the civil marriage is legal.art. 46, par. 1 of the Bulgarian Constitution
At the same time however, we believe that in the future it will be possible to deprive Bulgarian children of their right to be Bulgarians, just because their “parents” have different “values”. And with this, we will hardly make them any good, especially considering that these children will also be raised by same-sex “parents”…