Polish Citizenship for Children of Same-Sex Couples – Landmark Supreme Administrative Court Ruling 

In its judgment of 24 October 2023 (case no. II OSK 1163/22), the Supreme Administrative Court issued a fundamental ruling protecting the legal status of children born abroad whose parents listed in the birth certificate are persons of the same sex. 

This ruling definitively puts an end to the practice of state administration authorities refusing to confirm Polish citizenship by invoking the alleged inconsistency of foreign documents with the Polish legal order.

Key conclusions from the Supreme Administrative Court’s ruling

• Ius sanguinis is paramount: The basic condition for acquiring Polish citizenship by birth is that at least one parent holds Polish citizenship. This acquisition occurs by operation of law. For the confirmation of this fact, it is irrelevant that a person of the same sex is indicated as the second parent in the foreign birth certificate, or that the details of the biological mother, such as a surrogate mother, were not entered there.

• Public law excludes the application of family law rules: The Supreme Administrative Court clearly stated that the issue of acquiring citizenship falls exclusively under the public-law regime. Therefore, administrative authorities may not apply the provisions of the Family and Guardianship Code to interpret public-law institutions or to challenge biological parentage at the stage of confirming citizenship.

• No application of the public policy clause: In proceedings concerning the confirmation of possession of Polish citizenship, the public policy clause arising from private international law does not apply. The fact that a child holds a foreign birth certificate in which persons of the same sex are indicated as parents does not produce effects contrary to the fundamental principles of the legal order of the Republic of Poland in the context of the citizenship confirmation procedure itself.

• Foreign birth certificate as exclusive evidence: A foreign civil status record has evidentiary force equal to that of Polish official documents and constitutes exclusive evidence of the events recorded therein, even if it has not undergone the transcription procedure, meaning entry into Polish civil status registers. The administrative authority is not competent to conduct its own evidentiary proceedings aimed at challenging biological parenthood contrary to the data contained in the certificate.

• Protection against discrimination and EU law: The Court firmly emphasized that a refusal to confirm citizenship due to the indication of persons of the same sex in the birth certificate may lead to discrimination against the child on the grounds of the sexual orientation of their parents. Such action violates EU law because it deprives the child of the possibility of free movement within the Schengen Area and of the full enjoyment of the rights of a citizen of the European Union.

Polish citizenship of a child born abroad and a foreign birth certificate

The Supreme Administrative Court judgment, case no. II OSK 1163/22, constitutes a key procedural argument for Polish citizens living abroad. Public administration authorities cannot effectively make the confirmation of citizenship dependent on the form of the foreign birth certificate or require the submission of additional evidence of biological origin if the document clearly shows that one of the parents is a Polish citizen.

Any formal difficulties in completing the application (for example, the requirement to enter the mother’s details) cannot nullify the effect of acquiring citizenship, which occurred by operation of law at the moment of birth.

If you need support in a matter concerning the confirmation of Polish citizenship of a child born abroad, please contact us. Our lawyers will help you analyse the situation, prepare the documents and conduct the proceedings before the competent authorities. See how we can help effectively confirm Polish citizenship.