Poland refused to register the child of a same-sex couple: ECHR stated that children's rights do not depend on parents' orientation

The case “A.P. AND R.P. v. POLAND” (application No. 1298/19), the decision of which was made on July 2, 2026, concerns the conflict between national concepts of the traditional family model and the state's obligation to ensure the child's right to legal identity.

For law enforcement practice, this decision is an important guideline on how to balance the state's discretion in family law matters with the unconditional duty to act in the best interests of the child, avoiding discrimination based on birth circumstances.

Circumstances of the case

The first applicant, Ms. A.P., is a Polish citizen living in the United Kingdom in a same-sex union with another Polish citizen, E.K. In 2014, the first applicant gave birth to a son, R.P. (the second applicant), who became a Polish citizen by descent.

In the British birth certificate, A.P. was listed as the mother, and E.K. as "one of the parents." The conflict arose when the Polish consulate refused to issue a passport to the child without providing a Polish birth certificate. In 2015, the applicants applied for transcription of the British certificate in the Polish registry.

The civil registry offices and courts of all instances in Poland refused registration, citing Article 7 of the Private International Law Act (public order reservation). The authorities argued that Polish law recognizes only a man and a woman as parents, and registering two women would contradict the fundamental principles of the legal order of the Republic of Poland.

The applicants argued that this created a situation of legal uncertainty, hindered obtaining a passport and PESEL number, and without these documents, the child was effectively in a stateless situation.

Position of the ECHR

The ECHR noted that respect for private life requires that everyone has the opportunity to establish details of their identity as a person, which includes the legal bond between parents and children.

The Court emphasized that the fact that the second applicant was unable to register his foreign birth certificate and, as a result, did not receive Polish identity documents reflecting his relationship with his parents and confirming his status as a Polish citizen, placed him in a situation of legal uncertainty and made his position in Poland precarious.

The ECHR stated that in all decisions concerning children, directly or indirectly, their best interests must be a primary consideration. The best interests of the child include, among other things, the legal identification of persons responsible for their upbringing, meeting their needs and ensuring their welfare, as well as providing the child with the opportunity to live and develop in a stable environment.

The Court noted that the analysis of the child's best interests by national authorities in this case appears insufficient. The authorities extensively referred to public order and, after examining the birth certificate, concluded that it was simply impossible to enter a woman's name in the "father" field.

The Court stressed that while supporting and encouraging the traditional family is legitimate in itself, the concept of family inevitably evolves. Protecting families created in the traditional way should not call into question the need to protect children of same-sex couples.

As the Court previously stated, the interests of the child cannot depend solely on the sexual orientation of their parents.

It follows that the legal status of the child must be protected regardless of the family structure in which they were born. Refusal to register a foreign birth certificate solely on the grounds of establishing parentage is even more unjustified, as it deprived the second applicant of access to identity documents necessary to confirm his Polish citizenship.

The ECHR noted that the inability to obtain registration of a foreign birth certificate indicating the name of the child's biological mother is incompatible with the best interests of the child and constitutes a disproportionate interference with the second applicant's right to respect for private life.

The Court concluded that Poland currently lacks an effective mechanism to recognize the relationship between a child and same-sex parents in a situation similar to this case.

Violation of the Convention

The Court examined complaints under Article 8 and Article 14 in conjunction with Article 8 of the Convention. Regarding the first applicant (mother), the Court found no violation of Article 8, as her relationship with the child is recognized in the United Kingdom, where the family lives, and no real obstacles to their family life were proven.

However, regarding the second applicant (child), the Court found a violation of Article 8 of the Convention (right to private life) due to disproportionate interference with his personal identity.

A violation of Article 14 in conjunction with Article 8 was also established, as the authorities applied differential treatment based solely or decisively on the circumstances of his birth in a same-sex family and the sexual orientation of his parents, which is unacceptable under the Convention.

Therefore, the ECHR ruled that Poland must pay the second applicant 5,000 EUR in compensation for moral damage. The Court confirmed that the legal status of a child cannot be held hostage to national views on morality or family structure.

This decision is of fundamental importance for law enforcement, as it obliges member states to create effective legal means for documentary confirmation of the identity of children born in same-sex unions abroad, ensuring them access to passports and other means of identification without discrimination.

Read also about another ECHR position, where the Court recognized the lawful forced hospitalization of a pregnant woman to a hospital under escort despite her desire to give birth at home.

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