The problem of discrepancies in the jurisprudence of the Supreme Court and the Supreme Administrative Court regarding the transcription of a foreign birth certificates of a children of same-sex couples in the light of the Constitution of the Republic od Poland of 2nd April 1997

In recent years, refusal to transcribe birth certificates of children of same-sex couples has increasingly become the subject of decisions of the Supreme Administrative Court and the Supreme Court. This extremely current and at the same time complicated legal problem has been subjected in this study to a multifaceted study. The interpretation of the provisions regulating the issue of birth certificates allowed to define their place in the process of creating the child`s identity. On the other hand, the analysis of the case law made in the second part of the article made it possible to indicate specific consequences of the refusal to transfer foreign birth certificate to the national register of marital status. The most important and at the same time the most extensive part of the considerations is, however, the reference of the legal effects of the adopted solutions to the basic constitutional and international principles and values. Such a broad approach to the problem provided the basis for formulating final conclusions as to the rightness of the actions taken by the Polish state to protect the domestic legal order.

Admissibility of transcription of birth certificate of a samesex parents’ child – remarks within the context of the most recent case-law of the Supreme Administrative Court

This paper is an attempt to critically analyze the jurisprudence of Poland’s Supreme Administrative Court on transcription of a foreign birth certificate of a child of same-sex parents and it aims to present a decisive scientific position on this major issue. The subject being discussed, requires the adoption of a systemic and functional perspective during the scrupulous exegesis of the legal text and a particular consideration should be given to the inclusion of the constitutional norms in the process of examining the admissibility of this type of transcription. Therefore, this article comprises dogmatic references to the constitutional concept of family, parenthood and the scope of legal protection guaranteed by the relevant normative contents (including those firmly axiologised), as well as a commentary on selected provisions from a sub-constitutional level. A comprehensive analysis of the issue of transcription of the present category of birth certificates, taking into account the various normative levels, has led to the conclusion that the Supreme Administrative Courts’ thesis – which is boiled down to the recognition that there is a basic principle (that underpin the operation of polish legal system) which absolutely precludes transcription of a foreign birth certificate where same-sex people are entered as childs’ parents – does not deserve approval. Contrary to the presented view of jurisprudence, such a ban – for various reasons mentioned in the text – cannot be derived from the Polish law system.