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A draft regulation of Poland’s Ministry of Family, Labour and Social Policy allows the conclusion of a marriage to be established on the basis of a foreign civil status document, thereby also covering unions of persons of the same sex.

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The provision would apply solely to the care allowance for looking after a sick spouse and to the benefit left unclaimed due to the death of an insured person, yet in practice it recognizes a same-sex union as a marriage.

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The real motivation appears to be the judgment of the Court of Justice of the European Union (CJEU) of November 25, 2025, although the draft, its explanatory memorandum, and the Regulatory Impact Assessment contain no references whatsoever to that ruling.

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The regulation violates Article 18 of the Polish Constitution and Article 1 § 1 of Poland’s Family and Guardianship Code, under which marriage is always a union of a woman and a man.

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The issue is already the subject of two proceedings before Poland’s Constitutional Tribunal (case nos. K 10/26 and U 2/26); the Ordo Iuris Institute is calling for the removal of the unconstitutional provision from the draft.

The Ordo Iuris Institute has submitted to Poland’s Ministry of Family, Labour and Social Policy an opinion within the framework of public consultations on the draft regulation on the scope of information about circumstances affecting the entitlement to social insurance benefits in respect of sickness and maternity, or their amount, and the documents necessary for the granting and payment of benefits (list number: 105). The act was published on the website of Poland’s Government Legislation Centre on June 9. Paragraph 9 of the draft provides that “the conclusion of a marriage, in accordance with the applicable law of the Member States of the European Union, the member states of the European Free Trade Association (EFTA) – parties to the Agreement on the European Economic Area, the Swiss Confederation, or the United Kingdom of Great Britain and Northern Ireland, (–) shall also be established on the basis of a foreign civil status document constituting proof of the conclusion of the marriage and of its registration in the state concerned.” According to the text of the draft’s explanatory memorandum, this provision would be applied “both in the case of marriages of persons of the same sex and marriages of persons of the opposite sex,” although to a limited extent: “solely for the purpose of obtaining the care allowance for looking after a sick spouse or the benefit left unclaimed in connection with the death of the insured person.”

A Formal Pretext: the Amendment to the Sickness Benefits Act

The change to the regulation is formally motivated by the July 1 entry into force of the February 13, 2026 amendment to Poland’s Sickness Benefits Act; however, that amendment does not contain the slightest mention of marriage or of recognizing same-sex unions registered abroad as purported “marriages.” The real motivation may be the judgment of the Court of Justice of the European Union of November 25, 2025, and its consequences. That judgment has already been discussed by the Ordo Iuris Institute. Although the draft regulation itself, its explanatory memorandum, and the Regulatory Impact Assessment contain no references whatsoever to the CJEU judgment, such a reference was explicitly made orally by Minister Sebastian Gajewski during a June 9, 2026 sitting of the Sejm’s standing subcommittee on Poland’s implementation of judgments of the ECtHR and the CJEU – the same day on which the draft regulation in question was posted on the website of the Government Legislation Centre: “we have analyzed all benefit entitlements which are implemented through various methods and techniques of social security in Polish law and which, in our assessment, could potentially be guaranteed to spouses along the lines indicated by the CJEU.”

A Violation of Article 18 of the Polish Constitution

The proposed provision of the regulation, which in practice recognizes a same-sex union as a “marriage,” violates Article 18 of the Constitution of the Republic of Poland, under which marriage is always a union of a woman and a man. A careful analysis of the proceedings of the Constitutional Committee of Poland’s National Assembly on this particular provision indicates that the unequivocal intention of its drafters was to preclude the institutionalization of any form of cohabitation alternative to marriage, which is by its very nature a union of a woman and a man. This has also been repeatedly confirmed by Poland’s Constitutional Tribunal, Supreme Court, and Supreme Administrative Court. Similarly, the Family and Guardianship Code stipulates in Article 1 § 1 that a marriage may be concluded exclusively by a man and a woman who are simultaneously present. Meanwhile, the intention behind the proposed provision is precisely such an unconstitutional institutionalization.

The Case Before Poland’s Constitutional Tribunal

The incompatibility with Article 18 of the Polish Constitution of provisions that even indirectly enable the institutionalization of homosexual unions through the recognition of a foreign institutionalization (in this case: transcription) is currently the subject of two proceedings before the Constitutional Tribunal: case no. K 10/26, initiated by an application of a group of deputies dated March 27, 2026, and case no. U 2/26, initiated by an application of a group of deputies dated June 3, 2026. According to information available on the Constitutional Tribunal’s website, the second of these cases is to be heard at a hearing on July 28. All the more reason why the draft regulation in question, in its current form, should not be signed or promulgated.

The argument of the Ministry of Family, Labour and Social Policy that the admissibility of recognizing the foreign institutionalization of same-sex unions is merely a complement to the existing solutions concerning the recognition of birth certificates of children raised by same-sex couples does is not valid. Both parenthood (Article 18 of the Polish Constitution) and the rights of the child (Article 72 of the Polish Constitution) constitute objects of constitutional protection distinct from marriage. The Republic of Poland deliberately and consciously does not transcribe such birth certificates, recognizing their content only to a limited extent as to the very fact of birth (without recognizing any purported “parenthood” other than that of the biological mother), and solely on account of the overriding obligation of public authorities to take into account the best interests of the child, as Poland’s Supreme Administrative Court expressly emphasized in its resolution of December 2, 2019 (case no. II OPS 1/19).

The manifest unconstitutionality of this regulation and its inconsistency with the provisions of existing statutes make it likely that the entities authorized under Article 191(1)(1) of the Polish Constitution (including the President of the Republic of Poland, but also a group of 50 deputies, 30 senators, or the First President of the Supreme Court) will, pursuant to Article 188(3), apply to the Constitutional Tribunal for a review of the regulation’s conformity with the Polish Constitution and with statutes.

“Even within a scope limited to selected cases under social insurance law, the legal equation of same-sex unions with marriages is contrary to the Polish Constitution. The Ministry should remove this unconstitutional provision from the draft regulation,” stresses attorney Nikodem Bernaciak, a senior analyst at the Ordo Iuris Institute.

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Source of cover photo: iStock