SCHLITTNER-HAY v. POLAND and 1 other application (European Court of Human Rights)

Communicated on 26 February 2019

FIRST SECTION

Applications nos.56846/15 and 56849/15
SegevSCHLITTNER-HAY against Poland
and Matan SCHLITTNER-HAY against Poland
lodged on 5 November 2015 and 5 November 2015 respectively

STATEMENT OF FACTS

The applicants are two brothers, Mr SegevSchlittner-Hay (application no. 56846/15) and Mr MatanSchlittner-Hay (application no. 56849/15). They are both American nationals, who were born in 2010 and live in Ramat‑Gan, Israel. They are represented before the Court by their father, Mr O. Z. Schlittner.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1.  Background to the case:

The applicants’ parents are Mr S. and Mr H., a homosexual couple. They both have Israeli citizenship. Mr S. has also Polish citizenship. In 2010 both men entered into a surrogacy agreement with a certain K.C., a married woman and a citizen of the United States of America.

When the surrogate mother was found to be carrying twins, Mr S., Mr H., K.C. and her husband applied to the Superior Court of California, County of San Diego in order to determine custody rights and legal parenthood.

On 7 September 2010 the Superior Court of California, gave judgment and declared Mr S. and Mr H. to be the natural, joint and equal parents of twin babies carried by K.C. which were to be born on or about 20 October 2010. It also declared Mr S. to be the genetic father of the twins.

The judgment further specified the particulars that were to be entered in the birth certificate and stated that Mr S. should be recorded as the father/parent and Mr H. as mother/parent.

The applicants were born on 26 September 2010 and their birth certificates were drawn up in accordance with the terms stated above.

2.  Administrative proceedings

On 20 July 2012 Mr S. applied on behalf of both applicants as their curator ad litem to the Mazowiecki Governor for confirmation of the applicants’ Polish citizenship.

On 5 December 2012 the Mazowiecki Governor gave two decisions refusing both applications. The Governor noted at the outset that the applicants had failed to submit copies of their birth certificates as issued by a Polish Civil Status Registry (UrządStanuCywilnego). It further held that, according to the Polish legal system, a child’s mother was a woman who had given birth to that child. The Polish legal system did not allow for the concept of surrogacy. In view of those considerations, the documents provided and the Polish legal system, the applicants’ mother was K.C., that is the woman who undertook to conceive and bear them. At the same time, given the principle of presumption of paternity in Polish law, the applicants’ father was K.C.’s husband – D.C.

The Governor further found that on the date of the applicants’ birth Mr S. was not their parent. The original birth certificate which indicated Mr S. as their father and Mr H. as the other parent was of no relevance since it was contradictory to the judgment of the Superior Court of California which had clearly stated that K.C. and D.C. were the children’s biological parents.

The applicants’ representatives appealed to the Minister of the Interior (Minister SprawWewnętrznych).

On 28 February 2013 the Minister upheld the first-instance decision and agreed with the findings made by the Governor that, according to the Polish legal system, K.C. and D.C. were the applicants’ parents. Mr S. was not their parent on the date of their birth. It further held that the applicants’ original birth certificates had no evidentiary value, even though they indicated Mr S. and Mr H. as their parents, since these documents contravened the principles of the Polish legal order.

The Minister noted that the applicants had failed to institute proceedings under Article 1148 of the Code of Civil Procedure in order to determine whether the judgment of the Superior Court of California was applicable in Poland.

The Minister further agreed with the Governor that transposing the legal effects of the judgment of the Superior Court of California of 7 September 2010 into the Polish legal system would contravene the principles of the Polish legal system (godzi w polski system prawny).

The applicants’ representatives appealed. In particular they alleged a breach of the Polish Constitution because of the refusal to confirm the applicants’ Polish nationality despite the fact that their father was a Polish national.

On 4 July 2013 the Warsaw Regional Administrative Court (WojewódzkiSądAdministracyjny) gave judgment dismissing their appeal.

The court agreed with the findings made by the administrative authorities. It confirmed that the legal effects of the judgment of the Superior Court of California contravened the principles of the Polish legal system. In order for that judgment to be applicable in Poland it should have been confirmed by a Polish civil court in a separate procedure, pursuant to Article 1145 of the Code of Civil Procedure.

The court further held that, according to the relevant provisions of domestic law, the applicants’ mother was K.C. The Polish legal system did not contain the concept of a “surrogate mother”. It was also not possible to grant parental rights to persons who were not either the biological mother, her husband or a man who had acknowledged his paternity, the only exception being an adoption procedure. Consequently, an administrative authority could have relied on the Californian judgment only had the applicants submitted a decision given by a Polish court confirming that that judgment was in accordance with the Polish legal system. However, no such document had been submitted.

The court confirmed that the original birth certificates submitted by the applicants, even though they were not registered with a Polish Civil Status Registry, remained valid documents. On the other hand, it noted that those birth certificates indicated two persons of the same sex as the applicants’ parents. Therefore they had to be examined in the light of all available evidence in the case.

The applicants appealed. They maintained that Mr S., a Polish national, was the children’s biological father. In that regard they relied on the judgment of the Superior Court of California and DNA test results. They also referred to the Court’s judgments in the cases of Mennesson v. France (no. 65192/11, ECHR 2014 (extracts)) and Labassee v. France (no. 65941/11, 26 June 2014).

On 6 May 2015 the Supreme Administrative Court dismissed their cassation appeal. The court noted that for the determination of Polish citizenship, the children’s genetic links to Mr S. were of no relevance: a child who had one Polish parent and one foreign parent acquired Polish citizenship at birth. However, the court observed that a term “parent” had a legal meaning. Pursuant to the relevant provisions of the Family and Custody Code, a child’s mother was the woman who gave birth to that child. If the child was born during her marriage there was a legal presumption that the child’s father was the mother’s husband. This presumption could be rebutted only by lodging a claim for disavowal of paternity.

The court further held that the surrogacy agreement was not valid in the Polish legal system as it ran counter to the principles of community life. It also noted that the Polish legal system had not attributed parental rights to “so‑called partner relationships”. For that reason accepting the judgment of the California Superior Court would have been against the public policy principle (klauzulaporządkupublicznego). Likewise, the applicants’ birth certificates could not have any legal effect. These certificates indicated Mr S. as the applicants’ father and Mr H. as the applicants’ mother/parent. Since the certificates indicated two men as parents, and by that confirmed the surrogacy agreement, they ran counter to the basic principles of the Polish legal system. Therefore, Mr S. could not be considered to be the applicants’ parent. Lastly, the court noted that the cases of Mennesson and Labassee related to different sets of facts.

B.  Relevant domestic law and practice

At the material time the acquisition of Polish nationality was governed by the provisions of the Law of 15 February 1962 on Polish nationality (ustawa o obywatelstwiepolskim) (“the 1962 Act”).

Sections 4‑6 of the 1962 Act concerned the acquisition of citizenship by birth. In particular, section 6(1) provided that a child who had one parent who was a Polish citizen and another parent who was a citizen of another country acquired Polish citizenship at birth.

Section 7 of the 1962 Act further provided that any changes as to the parents or the parents’ citizenship would be taken into account in determining the child’s citizenship, if those changes took place within one year of the child’s birth.

On 15 August 2012 the Law of 2 April 2009 on Polish nationality (“the 2009 Act”) entered into force and repealed the 1962 Act.

The 2009 Act contains similar provisions (sections 6 and 14(1)).

COMPLAINTS

The applicants complain under Article 8 taken alone and together with Article 14 of the Convention that the domestic authorities based their decisions not to confirm their Polish citizenship on considerations relating to their parents’ sexual orientation. Despite the fact that their biological father Mr S. is a Polish citizen, they were refused Polish citizenship by descent on the ground that their birth certificate indicated two men as their parents.

QUESTIONS TO THE PARTIES

1.  Has there been a violation of the applicants’ right to respect for their private and/or family life, contrary to Article 8 of the Convention (see Mennesson v. France, no. 65192/11, §§ 96-101, ECHR 2014 (extracts))?

2.  Have the applicants suffered discrimination on grounds of their parents’ sexual orientation, contrary to Article 14 of the Convention in conjunction with Article 8? Reference is made to the reasons given by the domestic authorities when rejecting their applications for confirmation of their status as Polish nationals.

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