A Draft Bill to Prevent Activist Judges from Mandating the Transcription of Same-Sex Unions in Poland

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What does the draft bill address?

Although the content of Article 18 of the Constitution of the Republic of Poland, which defines marriage as being the union of a woman and a man, does not raise interpretive doubts, the process of assigning statutory provisions—through judicial interpretation—meanings contrary to their wording and to the constitutional standard has clearly accelerated recently.

The turning point was the judgment of the Court of Justice of the European Union of 25 November 2025 in case C-713/23 (Cupriak-Trojan, Trojan v. the Masovian Voivode), in which the CJEU—going beyond the competences conferred on the Union by the Treaties—held that a Member State is obliged to “in some way” recognize a “marriage” entered into by persons of the same sex in another Member State. Following that ruling, Poland’s Supreme Administrative Court, in a judgment of March 20, 2026 (II OSK 216/21), ordered the head of the civil registry office to transcribe into the Polish civil status register the marriage certificate of a “marriage” entered into in Berlin between two men—contrary to the resolution of a seven-judge panel of the Supreme Administrative Court of December 2, 2019 (II OPS 1/19). Subsequently, the Minister of Digital Affairs in the government of Donald Tusk amended the regulation specifying the form of the marriage certificate, which constitutes a gross violation of Article 92 of the Constitution of the Republic of Poland, because an implementing act cannot modify a statute, let alone the Constitution.

What is the goal of the project?

The bill drafted by the Ordo Iuris Institute closes four distinct paths through which the effects of foreign records of same-sex “marriages” or same-sex parenthood may enter the domestic legal order. Each of them corresponds to an amendment to one of four laws.

Registration path— Civil Status Records Act (the core of the draft bill). The bill outlines four main solutions:

• The abolition of the certificate of marital status (Art. 1(1–4)) – a substitute introduced in 2015 for the certificate of no impediment to marriage, which facilitated entering into same-sex unions abroad.
• The repeal of the so-called mandatory transcription (Article 1(5)) of the provision (Article 104(5)) that was often misinterpreted as requiring a registrar to transcribe a foreign civil-status record into the Polish register.
• The introduction of an exhaustive, categorical list of situations in which an official is required to refuse transcription (Article 1(6)). It concerns situations where a foreign document states one of the following situations: the entering into a marriage by persons of the same sex, the entering into a marriage by more than two persons, the entering into a marriage in which at least one person does not meet the age-of-majority requirement, or where a child’s parents are persons of the same sex or more than two persons.

Adoption process—the Family and Guardianship Code. The bill introduces a ban on the adoption of a child by a person who is in a same-sex relationship—whether formalized abroad (“marriage” or registered partnership) or informal. A protective evidentiary rule is provided: the candidate submits a statement, and the court verifies it only if there are reasonable doubts, and does so without inquiring into anyone’s sexual orientation.

Conflict-of-Laws path—Private International Law. The new Article 48(2) excludes the application of foreign law concerning family or guardianship relations between persons of the same sex and the recognition in Poland of foreign court judgments rendered on that basis.

Residence path—the Act on Foreigners. The draft replaces the vague concept of “family life” with the precise concepts of consanguinity and affinity within the meaning of the Family and Guardianship Code.

The draft law also contains a transitional provision (Article 5): the lack of legal effect will also apply to records of “marriages” already entered in the register before the law takes effect. They will remain in the register as historical entries, but they will not have the legal effects provided for a civil status record. This bill, if voted into law, would enter into force 30 days after its promulgation.

All the proposed changes serve to harmonize ordinary legislation with the Constitution of the Republic of Poland, which clearly protects the identity of marriage and the family based on the lasting union of a woman and a man. The draft law does not violate European Union law. The subject matter of matrimonial and family law remains within the exclusive competence of the Member States, and the CJEU judgment of November 25, 2025, issued ultra vires (beyond the scope of competence), is not subject to the principle of the primacy of EU law.

“The crux of the problem today is that, through interpretation, statutory provisions are being given a meaning that is contrary to their wording. Our response is a proposal for precise amendments to four statutes, each of which closes a different avenue by which the legal effects of foreign documents recognizing same-sex couples as “marriages” can enter Polish law. Experience teaches that when you slam one door shut, ideology looks for a window. Our proposal addresses all the openings in the wall at once,” notes Attorney Rafał Dorosiński, a member of the Board of the Ordo Iuris Institute.

See also:

• Poland’s Constitution Does Not Allow the Transcription of Foreign Same-Sex Marriage Certificates, Says Ordo Iuris Opinion for the Constitutional Tribunal
• Polish Court’s Judgment on Same-Sex Marriage Record—An Unconstitutional Capitulation to EU Ideologues
• Tusk Government Unlawfully Imposing “Gay Marriage” Transcriptions in Poland: How Ordo Iuris Helps Local Government Officials

Source of cover photo: iStock