A ruling is expected Tuesday intended to be binding on all 47 members of the Council of Europe
On Tuesday, 19 February, the European Court of Human Rights (ECHR) will deliver a Grand Chamber judgment in the case of X and Others v. Austria (No. 19010/07), involving a woman’s inability to adopt the son that her female partner had in a previous relationship with a man. Grand Chamber judgments set the jurisprudence of the Court and are intended to be binding on the 47 member states of the Council of Europe, making this decision to be of particular importance.
The two women, who act on their behalf and on behalf of the minor child, complain that they are experiencing discrimination based on their sexual orientation and invoke the right to respect for their private and family life (Art. 8) as well as the prohibition of discrimination (Art. 14). They “believe that there is no reasonable and objective justification for allowing adoption of one partner’s child by the other partner if heterosexual couples are concerned, be they married or unmarried, while prohibiting the adoption of one partner’s child by the other partner in the case of homosexual couples” (presentation of facts made by the Court).
This case, which was submitted by the LGBT lobby (ILGA, ECSOL FIDH, etc.), aims to establish a legal right to adopt the children of a same-sex partner. This is one of the three forms of adoption that LGBT groups demanded along with adoption by homosexual singles and homosexual couples. These ECHR addressed these claims in cases E.B. v. France in 2008 and Gas and Dubois v. France in 2012.
According to Austrian law, such adoption is not possible because a child’s filiation cannot be attributed toward more than two parents, and his adoption by a woman would break his relationship with his biological mother. The two women argue that when the couple is heterosexual, a man living with the mother of a child can substitute the father and adopt the child (just as a woman with the child’s father can theoretically substitute for the mother).
However, in this case, the natural parent loses all legal and human bonds with the child, even the right to see him. Such an adoption by substitution, if it is deemed to be in the best interests of the child, requires either the parent’s waiver of his role or a court decision declaring the biological parent’s unworthiness to maintain his parental rights in cases of abuse or the total neglect of the child.
In this case, the father has regular contact with his son (who bears his name), and he pays alimony. Thus, like many others whose parents are separated, this child lives with his mother and has a father he continues to see and who takes care of him.
The two women partners have asked the father to give up his parental rights. When he refused, they asked the Austrian courts to strip him of his parental rights and authorise the adoption so that the mother’s partner can take the place of the child’s father. Austrian authorities declined the request, finding the application contrary to the interests of the child. The two companions then turned to the European Court, alleging discrimination.
From the point of view of the interests of the child, the case is simple: the child already has a father and a mother. Neither of them wants to nor should waive parental rights. It is in the best interests of the child to keep his filiation and his relationship with his parents, and therefore may not be adopted.
However, from the adults’ perspective, the matter is complicated: it is not the interest of the child that is being considered; rather, equality between heterosexual and homosexual couples is what is at stake. It about the applicants having the same rights to children. The difference in circumstances between heterosexual and homosexual couples in their ability to “have” children is perceived as a form of inequality or discrimination. The Grand Chamber of the ECHR heard the case at the hearing on 3 October 2012 on this particular argument of the adults’ rights to adopt. [Note that the father has not been invited to participate in the proceedings before the European Court; perhaps he was not even informed, because the applicants were granted anonymity. The son either was not heard by the Court as a minor or his mother acted in his name and he had no legal counsel.]
The NGO European Centre for Law and Justice (ECLJ) was permitted to intervene in this case as a third party and submitted written comments to the Grand Chamber. The ECLJ’s comments recall that the rules of international and European law argue strongly in favor of the decision of the Austrian Government:
- The father has the right and duty to continue to care for his son . Conventions on adoption insist on the need for biological parents’ consent  as a condition of adoption.
- The interest of the child, which should be the paramount consideration in adoption , is to keep his father and mother . However, his primary interest, which is guaranteed by international law , is to maintain his relationship with his father and mother.
- There is no right to a child, nor is there a right to adopt or be adopted . The purpose of adoption is to give a family to a child who has none, not to adapt his parentage to his parents’ affective state.
- It is legitimate to keep the natural family as a model both for medically assisted procreation  and for adoption . It is for this reason that a child cannot be the object of multiple adoptions, that the adoptive parents must be of childbearing age and that adoption is final. Adoption changes parentage, which is an essential element of identity. It must be respectful of the identity and rights of the child, which would not be the case if we were to accept a parentage incompatible with reality. The European Court has recognised that it is legitimate to refuse to deliberately create situations that do not correspond to the natural reality , for example by allowing a minor’s adoption to involve the breaking of his biological parentage , thus avoiding him having more than two “parents.”
- Admitting fanciful forms of parentage that have no basis in reality would be a serious violation of the natural rights of the child, particularly the security and reference points he needs to grow. It would constitute a clear violation of the Convention on the Rights of the Child, which recalls in particular that the child has, “to the extent possible, the right to know his parents and be cared for by them” (Article 7) and the right “to preserve his identity, including his nationality, name, and family relations” (Article 8).