unknown parents and not recognising Italian nationality.225  In 2012, the Austrian Constitutional Court considered the case of a child born in a surrogacy arrangement in Ukraine to two Austrian nationals. The Court considered that the best interests of the child should prevail in such a case over a prohibition of surrogacy under Austrian law, and confirmed the child’s right to Austrian nationality.226 7.3. Discrimination based on sex and gender KEY MESSAGES • The principle of equality of rights between the sexes in relation to nationality is clearly established in international law. • In practice, equality in transmission of nationality to children is now the norm, and although discrimination based on sex in acquisition by a spouse remains more common, such discrimination is also decreasing. • Litigation before the Court of Justice of the European Union and the European Court of Human Rights is challenging states that refuse to recognise the nationality rights of children born to same-sex parents or through assisted reproductive technology. One of the most significant shifts in international law on nationality relates to the development of a prohibition on discrimination on the grounds of sex.227 While discrimination in transmission of nationality based on the sex of the parent or spouse was the norm until at least the 1970s, today only 24 states explicitly discriminate women in transmission of nationality to children, although more than 40 still discriminate in transmission to spouses.228 It was presumed by the drafters of the 1930 Convention on the Conflict of nationality Laws that the nationality of women and children would follow that of their fathers or husbands; a protocol adopted at the same time clarified that a mother should be able to confer nationality on her children at least where the father was unknown or stateless. The 1957 Convention on the nationality of Married Women accepted this assumption, while also attempting to give the woman more choice in the matter. Only with the 1979 adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was nationality law brought within the remit of requirements for nondiscrimination on the basis of sex. Article 9 of CEDAW now requires that “parties shall grant women equal rights with men to acquire, change or retain their nationality” and “with respect to the nationality of their children.” Article 16(1)(d) of CEDAW specifies that men and women should have “the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children.”229 In a general recommendation adopted in 1994, the CEDAW committee elaborated that “nationality should be capable of change by an adult woman and should not be arbitrarily removed because of marriage or dissolution of marriage or because her husband or father changes his nationality.”230 Other treaty bodies have supported the equal rights of men and women in relation to transmission of nationality to spouses and children.231 The impermissibility of discrimination based on sex was also asserted by the Committee on Migrant Workers and the Committee on the Rights of the Child in a joint general comment: 225 Paradiso and Campanelli v. Italy, Application No. 25358/12, European Court of Human Rights, Judgment of 24 January 2017 [GC], https://hudoc.echr.coe. int/eng?i=001-170359. 226 Judgment in case B99/12 UA, summary available at: https://caselaw.statelessness.eu/caselaw/austria-constitutional-court-case-11-october-2012. UNHCR made eliminating sex discrimination in nationality laws a pillar of its campaign to eradicate statelessness. See Action 3 in the ”Global Action Plan to End Statelessness: 2014–2024“, UNHCR, 2014, https://www.unhcr.org/ibelong/global-action-plan-2014-2024/; the updated ”Global Action Plan to End Statelessness 2.0“, UNHCR, 2024 https://www.refworld.org/policy/strategy/unhcr/2024/en/148761; and “Good Practices Paper - Action 3: Removing Gender Discrimination from Nationality Laws”, UNHCR, 2015, https://www.refworld.org/policy/opguidance/unhcr/2015/en/104247. 227 “Background Note on Gender Equality, Nationality Laws and Statelessness 2024”, UNHCR, March 2024, https://www.refworld.org/reference/themreport/ unhcr/2024/en/147696; GLOBALCIT database on modes of acquisition, available at: https://globalcit.eu/modes-acquisition-citizenship/. 228 229 Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979, Article 9. General Recommendation No. 21: Equality in Marriage and Family Relations, Committee on the Elimination of Discrimination Against Women, Thirteenth session (1994), commentary on Article 9 of CEDAW, https://www.refworld.org/legal/general/cedaw/1994/en/61456. 230 231 UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 21: Equality in Marriage and Family Relations, para. 6. This view was endorsed by the Human Rights Committee’s General Comment No. 19: The family (Art. 23), 1990, para. 7, and General comment No. 28: art 3 (The equality of rights between men and women), para. 25 (2000); by CERD in its General recommendation No. 21: Equality in marriage and family relations (1994). U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S 63