The Czech Republic’s Constitutional Court decided on 24 July 2017 in a landmark ruling to recognize a same-sex couple’s parenthood which was already valid in a foreign country. The decision is about a Czech and a Dane who were married in the USA and raise two children by surrogate mother. California laws consider both men parents since the children’s births, and both men’s names are in the California birth certificate. The parents have been trying to get both their names, not just one, written in the Czech birth certificate, a move the Czech Supreme Court has rejected in the past, claiming it would go against the public order. The Constitutional Court’s ruling today gives both partners, who have been raising together the children ever since they were born, the hope that their rights and obligations towards the children will be recognized in the Czech Republic, as well, and that the children will be entitled to receive care from both parents.

“We are happy that the Constitutional Court decided in our favor. We hope that we will soon be able to obtain Czech birth certificates for our children, and both our names will be on them, as parents. We will be less afraid of all the complications that might occur during our visits to my family in the Czech Republic, or in case we decide to move to the Czech Republic”, said Jiří Ambrož, the Czech father of the two children.

Today’s ruling of the Constitutional Court, however, only applies to parenthood originating abroad. Gays and lesbians in the Czech Republic are still unable to adopt children as a couple, nor can one of them adopt the partner’s child. Today’s ruling therefore leaves the gay and lesbian parents in a half-way position. It is the same situation as in the case of last year’s ruling by the Constitutional Court, which repealed the ban for a person living in `registered partnership` to adopt children individually, but did not make possible joint adoptions by the two partners. Moreover, today’s decision to recognize parenthood originating abroad does not apply to surrogate parenthood in the Czech Republic, something that exists, but is not regulated by specific laws. The Czech state is thus spinelessly ignoring the needs and legal certainties not only of a considerable number of children growing up in the families of same-sex couples, but also of the children born to heterosexual couples by surrogate mothers.

Substitute or surrogate motherhood is a procedure where the biological parent’s embryo is carried and delivered by a substitute mother. She gives birth to the child and then give up her parenthood rights. This service is used by childless heterosexual couples, but also by gay couples who use an ovule from a donor. While in many Western countries this substitute motherhood is a regulated procedure, with licensed agencies, in the Czech Republic surrogate motherhood is kept in a ‘gray’ legal area.

Jiří Ambrož and his husband have two children, a 5 year-old daughter and a 4 year-old son. Founding his claim on the principle that a child born to a Czech citizen, or adopted by such a citizen becomes a Czech citizen, the Czech father of the two children asked the Czech population register office (“matrika”) to register the two children, issue them a Czech birth certificate and confirm their state citizenship.

In the case of the young boy, the Supreme Court recognized the Czech citizen’s parenthood. The boy was therefore registered by the Czech population office and has a Czech birth certificate and a confirmation that he is a Czech citizen, but in those papers there is just one parent name. The application for the registration of the second parent was rejected by the Supreme Court because it would go against the public order, since the Czech law does not allow two people of the same sex to jointly adopt children. The Supreme Court identified in that reality a fundament of the Czech law, which it said should be observed. The two parents and their legal representatives decided therefore to file a constitutional complaint.

“We think that the child’s best interest is part of the public order in the Czech Republic. And if we weigh the interest for the child to not have two people of the same sex written as parents in its birth certificate against the interest to legally recognize the parenthood of the people who took care of the child as parents since its birth, and are its parents according the laws of another country, then we are of the opinion that the child’s best interest should prevail”, said Petr Kalla, the parents’ legal representative.

Thanks to the Constitutional Court’s ruling today, the issue will return to the Supreme Court, which will debate again the recognition of the second parent’s parenthood. Only a decision of the Supreme Court can lead to the registration of the second parent in the Czech population register, and in the child’s birth certificate.

As for the issuing of documents for the 5 year-old daughter, her case is still under consideration at the Supreme Court and today’s ruling of the Constitutional Court is likely to influence it.

Prague Pride z.s.– organizer of the annual LGBT festival and host of the counceling service Sbarvouven.cz.

Platforma pro rovnoprávnost, uznání a diverzitu z.s. (PROUD) – an organization for the rights of gays and lesbians in the Czech Republic

Jsme fér (We are fair) – a campaign for marriage equality for gays and lesbians carried out by the Koalice za manzelstvi (Coalition for marriage) which is made of: Amnesty International, Logos Česká republika, Mezipatra, Prague Pride and PROUD.