Mother B: A Birth Certificate Is Not an Adoption
On November 4, 2026, Poland’s Supreme Administrative Court declined to answer a question that had been before it for nearly three years: whether a foreign birth certificate that names two mothers may be copied into the Polish civil registry. Its 2019 ruling, which says no, still stands. The dispute will be back, and with it a question that the court’s reasoning never poses: whether an entry in a register is the right instrument for the job it is being asked to do. American courts have been answering that question for more than thirty years. Their answer: an entry alone does not make a parent.
The Supreme Administrative Court’s Resolution II OPS 1/24
In July of 2018, a Polish woman gave birth to a daughter in Spain. She had married an Irishwoman in Dublin that April. A Spanish civil registrar took a joint statement from the two of them and entered both on the birth certificate, as “Mother A” and “Mother B.” The girl is eight now, and her case is nearly as old as she is. In April of 2019, the head of the civil registry office in Kraków refused to transcribe the certificate, which is to say, to copy it into the Polish register. The refusal rested on the public-policy clause, a provision that requires an official to say no when transcription would offend the fundamental principles of the Polish legal order (Article 107, point 3, of the Law on Civil Status Records, Prawo o aktach stanu cywilnego). Poland’s Commissioner for Human Rights, the national ombudsman, took the matter to court.
What followed was a relay of questions. The Regional Administrative Court in Kraków first asked the Court of Justice of the European Union, in Luxembourg, which replied, in an order of June 24, 2022 (Case C-2/21), that Poland must issue the child an identity card or a passport without demanding transcription, and must accept the Spanish document so that she can move and reside freely with either mother. It did not order the transcription itself. The Kraków court was bound by a 2019 resolution of seven judges of the Supreme Administrative Court (Naczelny Sąd Administracyjny, or NSA), known by its docket number, II OPS 1/19. Resolutions of that kind bind every administrative court in the country. So, in January of 2024, the Kraków court asked the Supreme Administrative Court to change its mind. The Commissioner, a prosecutor delegated to the National Prosecutor’s Office, and several civic organizations supported the request. A single foundation opposed it.
The resolution of November 4, 2026 (II OPS 1/24), is an exercise in procedure. A court that wants an earlier resolution overturned must put exactly the question that produced it. The Kraków question cited Article 104(5) and Article 107, point 3, of the Law on Civil Status Records but left out Article 7 of the Private International Law Act (Prawo prywatne międzynarodowe), the general bar on applying foreign law when the result would contradict the foundations of the Polish legal order. The 2019 resolution rests on that provision, too. The question was therefore narrower than the ruling it challenged, and no answer to it could have dislodged that ruling. The judges added three observations. The first goes beyond form: the Kraków court had not shown that a new resolution was needed at all, since the Court of Justice’s order does not contradict the 2019 ruling. The second: the girl had not been deprived of the chance to obtain an identity document, because the decisions refusing her an identity card had been declared invalid. And the third: the transcription of same-sex couples’ marriage certificates, which the Supreme Administrative Court ordered on March 20, 2026 (II OSK 216/21), after the Court of Justice’s judgment of November 25, 2025 (Case C-713/23), is a different matter from the transcription of birth certificates.
The result is lopsided. The certificate of a marriage between two people of the same sex, concluded in another member state of the European Union, can now be transcribed in Poland; the birth certificate of their child cannot. The first half of that sentence is disputed by Poland’s Constitutional Tribunal, which, on July 28, 2026, held the ministerial regulation prescribing the document forms for such marriages unconstitutional (U 2/26). The ruling has not been published in the Journal of Laws, the step on which its effect depends; the regulation came into force in August, and registry offices are transcribing. The next question to the Supreme Administrative Court, this time with Article 7 included, is only a matter of time, though after the first of its observations adding the missing provision will not be enough.
Transcription and Adoption: A Clerk Copies, a Court Decides
Transcription is, by definition, copying. The statute requires that the content of the foreign document be carried over “faithfully and literally” (Article 104(2)). The head of the registry office examines the document: whether it is authentic, whether the proper authority issued it, whether any statutory bar applies (Article 107). The family goes unexamined. There is a piece of paper on the desk. The official will not see the child, will not ask whom she lives with, will not check whether she has a father. The statute calls this a “material-technical act” (Article 105(1)), and the name fits. Paragraph 3 of the same article shows why: when a foreign certificate, transcribed at the mother’s request, names a father other than her husband, the official copies it and notifies the husband that he may sue to deny paternity. The entry does not displace the presumption that the husband is the father. A judgment does.
Adoption is built the other way around. A minor may be adopted only for the child’s own good, and only by order of a family court (Articles 114 § 1 and 117 § 1 of the Family and Guardianship Code, Kodeks rodzinny i opiekuńczy). The court assesses the candidate’s qualifications, draws on the opinion of an adoption center, and may set a period of personal contact with the child. Parents cannot consent until six weeks after the birth (Article 1192). Only spouses may adopt jointly (Article 115 § 1).
Under Polish law, the mother is the woman who gave birth (Article 619), and the father is the man identified by presumption, acknowledgment, or judgment. Anyone else can become a parent in one way only: by adoption. The woman recorded in Spain as “Mother B” did not give birth to the child and is not her father. E.U. law requires Poland to recognize her bond with the child so that the child can move and reside freely with either mother. It does not require Poland to write same-sex parenthood into its own law, or to recognize that bond for purposes other than the rights the child derives from E.U. law (Case C-2/21, paragraphs 43 and 45). If she is to be the child’s parent in Poland in the sense of family law as well, then, in Polish terms, she can be one only as an adoptive parent. A demand that her name appear in the parents’ column of a Polish birth certificate is therefore, in its effects, a demand for adoption, minus the court, minus any inquiry into the child’s welfare, minus every safeguard with which the statute has surrounded the institution. Hence the thesis of this essay: transcription, when it is used to create a parental bond that Polish law knows only through adoption, is adoption at the counter.
The Strongest Case for Transcribing the Birth Certificate
The opposing position deserves its due, because it is stronger than its critics would like.
First, the child exists, and she is eight years old. Her family did not come into being through transcription and will not vanish if transcription is refused. Both women acquired their status lawfully, in a member state of the European Union, under that state’s law. Refusal undoes nothing. It merely ensures that the child has two parents in one country and one in another.
Second, there is Strasbourg. In its judgment of July 2, 2026, in A.P. and R.P. v. Poland (application no. 1298/19), the European Court of Human Rights held that the refusal to transcribe a British birth certificate naming two women as a boy’s parents violated his right to respect for private life and the prohibition of discrimination. The Court faulted Poland for making Polish documents depend on transcription and for lacking any effective mechanism to recognize the parental bond, even the bond with the biological mother (paragraphs 147 and 149). It called support for the traditional family legitimate in itself, but not a reason to leave a child’s legal position unprotected (paragraph 145). The judgment was reached by a majority, concerned the law as it stood before the 2019 resolution, and has been final since October 2, 2026. On family life the Court found no violation, because the family, which lives in Britain, had shown no concrete obstacles, and in assessing the child’s position it noted that the case did not involve surrogacy (paragraph 143).
Third, the advice “let the second mother adopt” is, in Polish conditions, a check that cannot be cashed. Joint adoption and the adoption of a spouse’s child are reserved for spouses, and marriage, as the Code understands it, is the union of a woman and a man. Poland’s Supreme Court confirmed as much in an order of September 24, 2024 (I CSK 2467/24), declining to hear an appeal in the case of a woman who sought to adopt the daughter of her wife, whom she had married abroad under American law. A critic of transcription who points to the family court is, today, pointing to a locked door.
Fourth, a birth certificate has never been a biological document. A mother’s husband is entered as the father by force of a presumption, even when the child was conceived with donor sperm. The Supreme Court of the United States turned that observation into a rule in Pavan v. Smith (2017). Arkansas put the husbands of birth mothers on birth certificates regardless of any genetic tie, and refused to do the same for their wives. Having chosen to make its birth certificates “more than a mere marker of biological relationships,” the Court said, the state could not deny married same-sex couples the same recognition.
Fifth, the law has long preferred fiction to biology when the fiction protects a family. In Michael H. v. Gerald D. (1989), a blood test showed a probability of more than 98 percent that the father of a little girl was her mother’s lover. The Supreme Court upheld California’s presumption that the father was the husband. “California law, like nature itself, makes no provision for dual fatherhood,” Justice Scalia wrote, for a plurality. The foundation that defended the 2019 resolution before the Supreme Administrative Court reached, by the court’s account, for a similar figure: a state of affairs that Polish family law, “like nature,” does not know. A supporter of transcription will reply that, in Michael H., nature pointed to the lover and the law chose the husband.
I accept the last two arguments for what they say about biology. The objection that transcription smuggles a “fiction of parentage” into the register is weak, because the register has always known such fictions. But both decisions say more than that. Pavan presupposes what Poland does not have: same-sex marriage under the state’s own law. In Michael H., the girl’s court-appointed guardian asked for two fathers at once. The Court refused, and left the choice between the husband and the biological father to the legislature. Every fiction the register knows was put there by a statute or by a court. A critique of transcription, if it is to stand, therefore cannot rest on biology alone. It has to rest on a different question: who decides that a child has acquired a parent, and by what procedure.
Full Faith and Credit: America Trusts Judgments, Not Registers
The United States makes a good laboratory, because it has fifty bodies of family law and one clause that obliges them to honor one another. Article IV of the Constitution commands each state to give “full faith and credit” to the public acts, records, and judicial proceedings of every other. The Supreme Court reads that command in two ways. Toward another state’s statutes, a state keeps its own public policy. Toward another state’s judgments, the obligation is strict. In Baker v. General Motors (1998), Justice Ginsburg wrote that the Court’s decisions support no “roving ‘public policy exception’” to the credit owed to judgments. A state may think a sister state’s judgment mistaken. It must honor it anyway.
What that means for the child of two mothers became clear in V.L. v. E.L. (2016). Two Alabama women had been together since 1995. One of them gave birth to three children. In 2007, a court in Georgia granted the other woman’s petition to adopt them, with the birth mother’s consent. Four years later, the couple separated, and the birth mother cut her former partner off from the children. The Alabama Supreme Court took her side: the Georgia court, it reasoned, had misapplied Georgia law, and so the adoption did not exist in Alabama. The U.S. Supreme Court reversed without hearing argument and without a dissent. Alabama was not entitled to ask whether the Georgia court had been right. It was entitled to ask only whether the Georgia court had had jurisdiction.
The second mother’s bond with the children survived the breakup, her former partner’s hostility, and the reluctance of her own state’s highest court. It survived for one reason: it was written in a judgment.
In this architecture, the register comes second. In Finstuen v. Crutcher (2007), a federal appeals court struck down an Oklahoma statute that barred recognition of adoptions granted to same-sex couples in other states. A judgment must be honored. The court also upheld an order for a new birth certificate, but it derived that order from Oklahoma’s own law, which gives adoptive parents the same rights as other parents. What an entry says is thus decided by the law of the state that keeps the register, which is why an entry can come out differently. In Adar v. Smith (2011), two unmarried men adopted, in New York, a boy who had been born in Louisiana, and asked the Louisiana registrar for a new birth certificate naming two fathers. The registrar refused, because Louisiana allows joint adoption only by married couples. The Fifth Circuit, sitting en banc and over the dissent of five judges, held that Louisiana had not refused to recognize the judgment: the registrar herself conceded that the decree bound her and that the two men’s fatherhood could not be relitigated in Louisiana, and a state shapes the contents of its own register according to its own law. The court borrowed a principle from Baker: the means of enforcing a judgment stay home even when the judgment travels. The ruling was contested. Both sides, however, shared one assumption, which the fathers themselves put in their brief: birth certificates are “identity documents that evidence . . . the existing parent-child relationships, but do not create them.”
A Polish reader will find this familiar. The 2019 resolution drew a similar line: an identity card, a passport, and a PESEL number (the national identification number) are owed to the child without transcription, because her rights do not depend on what the Polish register says. The Court of Justice did likewise in the Pancharevo case (C-490/20) and in Case C-2/21, ordering that the child be given documents and that the bond be recognized for purposes of free movement and residence, without ordering that anything be entered in a national register. Civic organizations told the Supreme Administrative Court that, in practice, the authorities do not keep that promise, and the court itself has conceded as much (II OSK 216/21, point 6.27). The design is Louisiana’s: rights in one place, the register in another. If a federation with a constitutional command of mutual recognition does not treat a birth certificate as a judgment, it is hard to demand as much between states that have no such command. There is a difference, though, and it should be named. In Louisiana, a judgment stood behind the register: both men were fathers and lacked only a document. In Poland, the second mother has neither an entry nor a judgment.
A Mother with Only a Birth Certificate
What happens when there is no judgment, only an entry? Linsay and Kylee Gatsby married in June of 2015. Kylee gave birth to a child conceived at home with a friend’s sperm. On the birth-certificate worksheet, the word “father” was crossed out and “mother” written in by hand, and the state issued a certificate listing both women as mothers. In the divorce case, the Idaho Supreme Court ruled, in Gatsby v. Gatsby (2021), by a divided vote, that Linsay was not a parent: she had not complied with the state’s artificial-insemination statute, which would have made her a parent, and she had not adopted the child. Adoption, the court noted, would have spared her this outcome. The line on the birth certificate did not help.
A birth certificate is not a judgment. It is a record of what one state’s office has accepted by operation of statute, and such a record can be challenged in court. That is why the organizations that represent these families do not advise them to trust birth certificates. The National Center for LGBTQ Rights strongly recommends that every nonbiological parent obtain an adoption or a court judgment of parentage, even a parent who is married and named on the birth certificate. Lawyers at GLAD explain that the proof of parentage that every state must honor is an adoption, a court judgment, or what a statute treats as the equivalent of one. Some states have streamlined the procedure for this purpose and named it confirmatory adoption. California requires neither a home study nor a hearing for it, but it does require a judgment: the court must find that anyone else with a claim to parentage has been given notice or has consented.
That, as it happens, is how the second mother entered American law. In Adoption of Tammy (Massachusetts, 1993) and Matter of Jacob (New York, 1995), the states’ highest courts allowed a mother’s partner to adopt her child. In doing so, they opened a proceeding in which a court examines the circumstances of a particular child and only then decides. The New York court gave its reason: the security of knowing that, if the biological mother died or the couple separated, the child would not lose the other parent. Those are the very two situations named in an amicus opinion submitted to the Supreme Administrative Court. In America, the answer to them was a judgment, not an entry.
Poland is fighting over a document that, in America, even the people who hold it do not trust.
Adoption Safeguards Are a System That No Entry Can Replace
There is one more reason that American courts guard the judicial route. Adoption statutes form a system of safeguards, and each of them protects against something. In the celebrated case of Baby M (1988), the New Jersey Supreme Court held a surrogacy contract invalid because it produced the effects of adoption while bypassing three sets of rules: those forbidding payment in connection with adoption, those requiring statutory grounds before a mother’s rights are terminated, and those allowing her to revoke her consent. The court faulted the contract for disregarding the child’s welfare entirely. And it added a sentence that has passed into the casebooks: in a civilized society, there are things that money cannot buy.
In T.J.S. (2012), the same court, evenly divided, left standing the view that the wife of a genetic father, who neither carried the child nor was genetically related to it, could reach the birth certificate only by way of adoption. When New Jersey changed its mind, the legislature did the changing. A 2018 statute permitted agreements with gestational carriers, but the intended parents’ parentage is declared by a court, and the registrar issues the birth certificate only on the strength of its order. The rule changed. The sequence did not: first the court, then the register.
The case before the Supreme Administrative Court has nothing to do with surrogacy. The mother who gave birth is on the certificate, and no one is removing her. But a rule about transcription will not be a rule for one family. The head of a registry office, copying “faithfully and literally,” cannot tell, from the document alone, a certificate issued after the joint statement of two wives from a certificate issued after a contract with a surrogate, or from one that leaves out a man prepared to claim paternity. On paper, they look alike. Nor is the case invented. In the Strasbourg case, the boy’s biological father was, on the applicants’ own account, a man found through a website that matches sperm donors with female couples, and who, they said, had no wish to take part in raising him. In Idaho, the donor was a friend. The one who can tell these situations apart is the one who takes evidence and hears the people concerned, which is to say, a court.
The Transcription Dilemma: Adoption Without a Court, or Protection in Name Only
Supporters of transcription speak of it in two ways, and both deserve to be taken seriously.
On the first account, transcription is meant to give the child two parents in Poland, with parental authority, child support, and inheritance. The civic organizations spoke plainly, before the Supreme Administrative Court, of recognizing the parenthood of both women. If that is so, an official’s technical act produces an effect that the Code reserves for a court order issued for the good of the child, and that the courts refused to a mother’s wife who sought to adopt, a refusal that Poland’s Supreme Court let stand in 2024. The counter would be granting what the courtroom withholds. And whether Polish law knows the parenthood of two women is then settled by the contents of a Spanish, a British, or a Californian register, not by the Polish legislature.
On the second account, transcription creates nothing: it is declaratory, a mirror of what already exists. That, as it happens, is how the Supreme Administrative Court itself sees it: transcription, it wrote in 2019 and again in 2026, creates no new legal situation. Except that, as evidence, the Spanish certificate already works in Poland without it. Poland’s Supreme Court settled the point in a seven-judge resolution of November 20, 2012 (III CZP 58/12): a foreign civil-status record is the exclusive proof of the events it records even if it has never been entered in the Polish books. If the fight over transcription goes on, then, it is about something more than proof. And if that “something more” is ever disputed, a court will turn to the law that governs a child’s parentage. For a child who has held Polish citizenship since birth, that is Polish law (Article 55(1) of the Private International Law Act), and Polish law knows no second mother. A civil-status record’s inconsistency with the truth, meanwhile, can be established in court (Article 3 of the Law on Civil Status Records). To my knowledge, no Polish court has yet decided a dispute over the status of a second mother entered by transcription, so this is a forecast, not a certainty. Its direction, though, is indicated by the District Court in Świnoujście (I Ns 244/22). There, an official had copied a Dutch certificate naming two mothers and left the second one out. In 2023, the court declined to annul the resulting Polish certificate, observing that the second mother’s entry in the Dutch document undermined nothing in it, because Polish law does not provide for same-sex parenthood. The rules on parental responsibility, including the 1996 Hague Convention, may give the second mother some protection in matters of custody, but they do not decide parentage. The second mother would thus stand where Linsay Gatsby stood: holding a document and lacking the status of a parent, at the very moment when status matters most, after the death of the birth mother, after a separation, or at the division of an estate.
Either way, the child loses. In the first case, no one has examined her welfare. In the second, her security is an illusion.
What Follows for Poland
The resolution of November 4th closed nothing. The case goes back to the court in Kraków, and the question of transcription will return to the Supreme Administrative Court with its full complement of provisions. It will be framed as before: yes or no. The American experience suggests that this is the wrong pair of choices.
The Strasbourg Court requires that, where the bond between a child and the person named as a parent in a foreign certificate has become a practical reality, an effective mechanism exist for its legal recognition. It does not require that the mechanism be an entry in a register. In its advisory opinion of April 10, 2019, which is not binding but which the Court has repeated in its judgments ever since, the Court said that recognizing the bond with a mother who did not give birth need not mean copying the foreign birth certificate into the national register. Adoption will do, provided the procedure is prompt and effective. The opinion concerned surrogacy, but its logic is more general: a state may choose the path; what it may not do is leave the child with none. The Court itself has applied the opinion beyond surrogacy, in R.F. and Others v. Germany (2024). One partner gave birth to the child in Germany; the child had been conceived from the other’s egg. Only the woman who gave birth was recognized as the mother, and the Court found no violation: the other could adopt the child, and did so without particular difficulty. Where there is no path, the Court finds a violation, as it did in 2022 in D.B. and Others v. Switzerland and K.K. and Others v. Denmark. In A.P. and R.P. v. Poland, the Court listed what Polish law denies a mother’s partner (joint adoption, second-parent adoption, any route to parental responsibility) and faulted the dependence of documents on transcription. Judge Chablais, who voted with the majority on the private-life violation, spelled out in a separate opinion how that should be understood: the problem is not the refusal of transcription as such but its consequences where no such bond can be created, whether by adoption or by some other judicial procedure. Whether the whole majority reads the judgment that way is not settled.
This much is certain today: under the law as it stands, the transcription of a birth certificate naming parents of the same sex remains excluded, and the child is entitled to documents without it. It is equally certain that this state of affairs does not answer the charge that there is no path to recognizing the bond with the second mother.
There is a lesson here, too, for those who want to keep Poland’s model of parentage. The transcription of marriage certificates became an obligation not because the Court of Justice thought the register the only proper route. It said in terms that transcription is just one of the ways of recognizing a marriage, and that the choice of method belongs to the state (Case C-713/23, paragraph 69). It became an obligation because, in Poland, it was the only way there was. The U.S. Supreme Court reasoned similarly in Pavan. Those who do not design a judicial route will be shown to the counter.
The question of adoption will also return to the family courts. Poland’s Supreme Court has answered it once, in the 2024 order mentioned above: a “spouse,” in the provisions on adopting a spouse’s child (Article 1211 § 1 of the Family and Guardianship Code), means a mother’s husband or a father’s wife, and the child’s welfare does not open the way to an adoption that the statute excludes. The order came before certificates of same-sex marriages concluded in other member states began to enter the Polish register. A mother’s wife whose marriage appears there may try again. The Supreme Court rested chiefly on Article 1 of the Code and Article 18 of the Constitution, which do not depend on transcription. But it also invoked the administrative courts’ then uniform case law, under which such a union could not be equated with marriage in Polish law, and that case law, after the Court of Justice’s 2025 judgment, has come to allow the transcription of marriages concluded in other member states. The Supreme Administrative Court itself, meanwhile, was careful to say that it was not deciding what effects such a transcription has, family law included (II OSK 216/21, point 6.22). If the question is to be asked, a family court is the right room in which to ask it.
The recommendation to the legislature is simple in design, however hard it may be politically. The decision whether a second woman can be a child’s parent in Poland belongs to the legislature. The Court of Justice itself has said as much: the rules on parentage remain within the competence of the member states (Case C-490/20, paragraph 52). Today that decision is no, and so Poland’s Supreme Court has read it. After the final Strasbourg judgment, though, a bare no is no longer enough: the Court counted the absence of any path to recognizing the bond among the reasons for the violation. Whichever path the legislature chooses, applying it to a particular child should belong to a family court, which will check what an official cannot: whom the child lives with, whether she has a father, whether anyone’s rights are quietly disappearing, and what her welfare requires. The child would then receive a court order, a title more durable than an entry. As long as the legislature says no, the register, least of all, should say yes in its place.
Who her mother’s wife is, in Polish law, to the girl in the Kraków case is for the legislature or a court to settle. An entry in the register, even if she someday obtains one, will not settle it.
The law and the case law are stated as of November 13, 2026.
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Robert Nogacki is a Polish attorney at law (radca prawny), the founder and managing partner of Kancelaria Prawna Skarbiec (Skarbiec Law Firm), which has operated continuously since 2006.
The law is equal for everyone, but the parties rarely are: on one side stands an organization with time, money, and lawyers, on the other a person with one business, one nest egg, and one life.
Clients rarely come to him with a legal problem. They come with a problem that also has a legal side: an audit that began with a single invoice, money entrusted to someone who has disappeared, a company that has to be passed on before it is too late. Most such matters are decided long before the first letter is written, in decisions made without asking and in deadlines nobody remembered. So he begins by asking how the client got here, not what the client should have done.
He advises entrepreneurs and families from more than a dozen countries, including those whose accounts the tax office has just seized and who do not know what to do tomorrow morning. He defends them in tax audits, customs and fiscal inspections, disputes with the tax authorities, and criminal tax proceedings. He represents victims of investment fraud and Ponzi schemes. He helps families set up family foundations and plan succession, so that a life’s work outlasts a single generation.
Not every case can be won. Every case can be run so that the client knows where they stand. Since 2006 he has represented the victims in the WGI case (Warszawska Grupa Inwestycyjna, the Warsaw Investment Group), one of the longest criminal cases in the history of the Polish financial market, because some things must not be left half finished, even when they take two decades. In the case of the collapsed cryptocurrency exchange Zonda (Zondacrypto, operated by BB Trade Estonia OÜ), he represents several hundred victims in the criminal investigation conducted by Poland’s National Prosecutor’s Office and in the Estonian bankruptcy proceedings.
Kancelaria Prawna Skarbiec is listed in the rankings of Poland’s largest tax advisory firms published by Dziennik Gazeta Prawna and Rzeczpospolita, and it is a four-time recipient (2015 to 2018) of the European Medal awarded by the Business Centre Club and the European Economic and Social Committee. Robert Nogacki publishes regularly, in the press and on the firm’s website, for people who have a problem rather than a law degree, because a legal opinion the client cannot understand protects only the lawyer.
He believes that the best legal advice is the kind that means the client never has to appear in court.
