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Same-sex parentage and surrogacy and their practical implications in Poland
Written by Anna Wysocka-Bar, Senior Lecturer at Jagiellonian University (Poland)
On 2 December 2019 Supreme Administrative Court of Poland (Naczelny S?d Administracyjny) adopted a resolution of seven judges (signature: II OPS 1/19), in which it stated that it is not possible – due to public policy – to transcribe into the domestic register of civil status a foreign birth certificate indicating two persons of the same sex as parents. The Ombudsman joined arguing that the refusal of transcription infringes the child’s right to nationality and identity, and as a result may lead to infringement of the right to protection of health, the right to education, the right to personal security and the right to free movement and choice of place of residence. Interestingly, the Ombudsman for Children and public prosecutor suggested non-transcription. The background of the case concerns a child whose birth certificate indicated two women of Polish nationality as parents, a biological mother and her partner to a de facto union. Parents applied for such transcription in order to apply subsequently for the issuance of the passport for the child.
The Supreme Administrative Court stated that in accordance with the law on civil status register, the transcription must be refused if contrary to ordre public in Poland. The public policy clause protects the domestic legal order against its violation. Such violation would result from the “recognition” of a birth certificate irreconcilable with fundamental principles of public policy. It was underlined that in accordance with Article 18 of the Constitution of Poland marriage is understood as a union between a man and a woman; family, motherhood and parenthood are under protection and guardianship of the State. In accordance with those principles and the whole system of family law, only one mother and one father might be treated as parents of a child. Any other category of “parent” is unknown. The Court underlined, at the same time, that transcription of the birth certificate into the domestic register should not be indispensable for a child to obtain a passport, as the child has, by operation of law, already acquired Polish nationality as inherited from the mother. However, in practical terms this would require challenging administrative authorities’ approach (requesting domestic birth certificate) in another court procedure.
It should be explained here that the resolution was taken on the request of the panel of judges of the Supreme Administrative Court reviewing the cassation appeal brought by the parents, and therefore, in this particular case is binding. In other, similar cases panels of judges should, in general, follow the standpoint presented in such resolution. If the panel of judges is of a different view, it should request another resolution, instead of presenting a view contrary to the previous one. As a result, it might happen that there are two resolutions of seven judges presenting different views. Given the above, it can be said that the question of transcription is not as definitively answered as might seem at first glance.
A similar justification based on the public policy clause in conjunction with Article 18 of the Constitution has already been presented before in other cases, for example one concerning children born in the US out of surrogacy arrangements with a married woman, whose birth certificates indicated two men as parents, a (biological) father and his partner (identical judgments of 6 May 2015, signature: II OSK 2372/13 and II OSK 2419/13). The implications of these judgments were quite different as the Court refused to confirm that children acquired Polish nationality by birth from their father. In the eyes of the Court and according to fundamental principles of Polish family law, children born out of surrogacy (which is not regulated in Poland) by operation of law have filiation links only with the (biological, surrogate) mother and her husband. The paternity of the biological father (only) might be (at least theoretically) established, once the paternity of the surrogate mother’s husband is successfully disavowed in a court proceeding.
Here it should be added that opposite views were presented by the Supreme Administrative Court in other judgments. One of the cases concerned transcription of the birth certificate of a child born in India out of surrogacy arrangement. Such birth certificate indicates only the father (in this case a biological father) and do not contain any information about the (surrogate) mother. This was perceived as contrary to public policy by the administrative authorities, which underlined that in the Polish legal order establishing paternity is always dependent on the establishment of maternity. As a result, the lack of information about the mother raises doubts as to paternity of the man indicated on the birth certificate as father. Interestingly, based on the same birth certificate the acquisition of Polish nationality of the child was earlier confirmed by administrative authorities. In its judgment of 29 August 2018 (signature: II OSK 2129/16), Supreme Administrative Court criticized the way the public policy clause was so far understood. The Court (which hears the case after the refusal of administrative authorities of two instances and administrative court of the first instance – just as in all of the mentioned cases) underlined that this clause must be interpreted having regard to a broader context of the legal issue at hand, in particular it should take into account constitutional values (always prevailing best interest of a child) and international standards on protection of children’s rights and human rights. This allows for the transcription of the birth certificate into civil status records in Poland.
Another interesting case concerned again the question of confirmation that the children acquired Polish nationality by birth after their father (four identical judgments of 30 October 2018, signatures: II OSK 1868/16, II OSK 1869/16, II OSK 1870/16, II OSK 1871/16). Four girls were born in US through surrogacy. The US birth certificates indicated two men as parents, one of them being a Polish national. The Supreme Administrative Court underlined that for the legal status of a child, including the possibility of confirming acquisition of Polish nationality, it should not matter that the child was born to a surrogate mother. What should matter is that a human being with inherent and inalienable dignity was born and this human being has a right to Polish nationality, as long as one of the parents is a Polish national.
The above mentioned cases, where the Supreme Administrative Court presented a conservative approach and approved the refusal of the confirmation that children born out of surrogacy acquired Polish nationality by birth is now pending before European Court of Human Rights (Schlittner-Hay v. Poland). The applications raise violation by Poland of Article 8 (respect for private and family life) and Article 14 (discrimination on grounds of parents’ sexual orientation) of the European Convention on Human Rights.
This shows that practical implications for children to same-sex parents and from surrogacy arrangements are of growing interest and importance also in Poland. The approaches of domestic authorities and courts seems to be evolving, but are still quite divergent. The view on the issue from the European Court of Human Rights is awaited.
Milan Investment Arbitration Pre-Moot – 14-15 February 2020
Following an earlier post, here’s a reminder of the First Edition of the Milan Investment Arbitration Pre-Moot.
Albert Henke prepared for this reason the following announcement:
On February, 14 and 15, 2020 will take place in Milan the First Edition of the Milan Investment Arbitration Pre-Moot, an event jointly organized by the Law Firm DLA Piper, Milan, Università degli Studi of Milan and the European Court of Arbitration (Italian section). The Pre-Moot will be a chance for ten University teams from all around the world to test their advocacy skills in moot arbitration hearings, in preparation for the Frankfurt International Arbitration Moot Competition, the oldest and most prestigious student competition in the area of investment protection law, scheduled for the beginning of March 2020 in Frankfurt (https://www.investmentmoot.org/news-2-2/). The Pre-Moot will be introduced by a Conference hosted by Università degli Studi on the topic: “Outstanding issues and recent developments in international investment arbitration”. All the information in the attached flyer.
Call for Papers: SLS Conflict of Laws Section, University of Exeter 2020
For the fourth consecutive year, the Annual Conference of the Society of Legal Scholars (SLS) will feature a section dedicated to Conflict of Laws. This year’s iteration of the conference will take place from 1 to 4 September 2020 at the University of Exeter (more information here). The conveners of the Conflict of Laws section, Andrew Dickinson and Máire Ní Shúilleabháin, have kindly provided the following Call for Papers.
SLS Conflict of Laws Section: Call for Papers and Panels for 2020 SLS Annual Conference at the University of Exeter
This is a call for papers and panels for the Conflict of Laws section of the 2020 SLS Annual Conference to be held at the University of Exeter from Tuesday 1st September – Friday 4th September.
This marks the fourth year of the Conflict of Laws section, and we are hoping to build on the successful meetings in past years, most recently at the 2019 Conference in Preston. We would like to thank all those who have supported the section since its inception.
The Conflict of Laws section will meet in the second half of the conference on Thursday 3rd and Friday 4th September.
We intend that the section will comprise four sessions of 90 minutes, with 3 or more papers being presented in each session, followed by discussion. At least three of the sessions will be organised by theme. We hope, if submissions allow, to be able to set aside the fourth session for papers by early career researchers (within 5-years of PhD or equivalent). We also hope to organise a Conflict of Laws social event on the Thursday evening.
We welcome proposals from scholars in the field for papers or panels on any aspect of the Conflict of Laws (private international law). We welcome proposals representing a full range of intellectual perspectives in the subject section, and from those at all stages of their careers.
If you are interested in delivering a paper, we ask you to submit a proposed title and abstract of around 300 words. If you wish to propose a panel, please submit an outline of the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate), together with their proposed titles and abstracts.
Please submit your paper abstract or panel details by 11:59pm UK time on Tuesday 24th March 2020. All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – https://app.oxfordabstracts.com/stages/1763/submitter – and following the instructions (select ‘Track’ for the relevant Subject Section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk.
As the SLS is keen to ensure that as many speakers with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference. With this in mind, when you submit an abstract via Oxford Abstracts, you will be asked to note if you are also responding to calls for papers or panels from other sections.
The SLS offers a Best Paper Prize which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel. The Prize carries a £250 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, be published in Legal Studies. To be eligible:
- speakers must be fully paid-up members of the SLS;
- papers must not exceed 12,000 words including footnotes (as counted in Word);
- papers must be uploaded to the paperbank (via Oxford Abstracts) by 11.59pm UK time on Monday 24th August; and
- papers must not have been published previously or have been accepted or be under consideration for publication.
We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Tuesday 16th June in order to secure their place within the programme. Please do let me/us know if this is likely to pose any problems for you. For further information, please see the conference website (https://www.slsconference.com/).
We note also that prospective speakers do not need to be members of the SLS or already signed up as members of a section to propose a paper.
We look forward to seeing you, as a speaker or delegate, at the Conflict of Laws session in Exeter.
With best wishes,
Professor Andrew Dickinson, St Catherine’s College, University of Oxford Dr Máire Ní Shúilleabháin, University College Dublin (Conveners)