The NSA has divided the prosecution's position that the provisions of the Constitution of the Republic of Poland, the law on civil law and private international law do not allow the transcription of the foreign birth certificate of the child into the Polish legal system, in which same-sex persons are entered as parents, which does not prevent the child from being given the Pesel number and the Polish identity card.
In his position, the prosecutor indicated that the Law on Civil Status Records does not allow automatic entry in the Polish register of civil status of a child born outside the country to which parental rights have been obtained abroad by couples of the same sex.
The provisions of the Civil Status Acts Act must be interpreted in the light of the provisions of the Constitution of Poland, which under Article 18 states that marriage is a union of man and woman, and that family, parenthood and motherhood remain under the protection and care of the Republic of Poland.
The entire Polish legal system, including the provisions of the Family and Care Code, does not provide for the possibility of same-sex couples adopting.
The whole of the Polish legal order, including constitutional law, civil law, administrative law, does not allow the implementation of legal solutions, the effects of which would lead to denial of their content.
This constitutes a public policy clause, expressed both under Article 107(3) Law on Civil Status Records, and Article 7 Private International Laws. The Polish legal system does not provide for legalization of partnerships, marriages of same-sex people, or even adoption of children by single-sex couples.
Therefore, making the transcript requested by the applicants would be contrary to the Polish legal order.
Part of the legal community states that the resolution is harmful to the minor. We find comments that point to the fact that, despite ratification of the UN Convention on the Rights of the Child, Polish authorities do not safeguard the child's best interests. In the case of children of single-sex couples, their right to identity is not respected
Critical opinions on the resolution
Part of the legal community states that the resolution is harmful to the minor. We find comments that point to the fact that, despite ratification of the UN Convention on the Rights of the Child, Polish authorities do not safeguard the child's best interests.
In the case of children of single-sex couples, their right to preserve their identity is not respected.
Children born abroad in monosexual couples and with Polish citizenship (for one or two parents) cannot, in practice, obtain an ID card or passport, since a transcript of the foreign birth certificate is necessary to obtain these documents and this one is excluded by the NSA.
The Court’s contested resolution notes that the practice of administrative authorities so far shows that they do not, for example, issue a passport without transcription (they leave the application without examination).
Polish regulations guarantee children the same rights. At least in theory.
The NSA underlines that despite the lack of transcription, Polish legislation guarantees children the same rights, including the right to obtain a PESEL number, identity card and passport. The practice of public administrations, which prevents the exercise of these rights, is incompatible with the applicable Polish law.
Where the parents of a child born abroad are of the same sex, the head of the civil status office – refusing to transcribe – should act on the basis of Article 20(1) p.a.s.c. about giving the child a PESEL number. In the same way, the application for a child's identity card or passport should be recognised.
Foreign civil status records are sufficient grounds for dealing with the issue of the child's PESEL number, the issue of a passport or other administrative matters, and therefore it is not necessary to transcribe the birth certificate to the Polish legal order.
Refusal to transcribe the birth certificate in Polish legal conditions does not in any way affect the right of the child to move freely within the territorial borders of the European Union, including the right to reside freely in the territory of Poland or the country responsible for the birthplace of the child.
Judgment of the Court of Justice of the European Union and of the ECHR
A similar view was expressed by the Court of Justice of the European Union in its judgment of 5 June 2018 in Coman v Romania, C-673/16, in which he stated that: '(...) of course civil status issues (...) are matter belonging to the competence of the Member States and Union law does not affect this competence' (point 37) and (...) The Union respects the national identity of the Member States, intrinsically linked to their basic political and constitutional structures." Moreover, the case law of the European Court of Human Rights and EU law consistently point to the freedom of the State to decide in securing "internal public order" and in regulating the validity of marriages and their legal consequences. Application of the constitutional identity clause of the Member State, expressed under Article 4(2) The Treaty on European Union does not result in a violation by the Polish legislator of constitutional and legal international standards for the protection of the rights of the child
Position of the Ombudsman for the Rights of the Child
„This resolution is crucial for the Polish legal system. There is no doubt that the parents of the child must not be single-sex couples. Moreover, it is impossible, even indirectly, to legalize single - sex marriages. For me, the applicable law is obvious, for some environments, as you can see, no, that is why today's resolution of the Supreme Administrative Court is so valuable," wrote the Ombudsman of Children's Rights Nicholas Pawlak. He pointed out that allowing a foreign document to be transcribed despite the contrary to the Polish law of information contained in it would be a dangerous precedent. “If today we agree to include in the Polish civil record information that parents are two women, tomorrow we may be forced to accept a request to record in Polish files that she is a wife 12-a year old, because such a legal condition applies somewhere in a far country."
Author: Katarzyna Kołbuś
Editor leading RB Magazine. From Over 10 years related to industry press, including the Financial Gazette and portal ipip.com.pl, which is devoted to finance, taxation, law, politics and the economy. She graduated from Polish philology at the UMCS and the linguistic text editing at the University of Warsaw