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“Had the woman been a man”: European Court upholds homosexual adoption

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Commentary on the European Court of Human Rights’ ruling in favor of homosexual adoption

On the 19th of February, in a 50 page judgment, the Grand Chamber of the European Court of Human Rights (ECHR) ruled against Austria in the case of X and Others v. Austria (no. 19010/07) calling into question the impossibility of a woman adopting a child that was born to her partner in a previous relationship with a man (what the Court refers to as “co-parental adoption”). This decision established the principle that the adoption of children by same-sex partners should be possible, as it is for heterosexual unmarried couples.

Here is the Court’s ruling: 

"The Court establishes that the impossibility of second-parent adoption in a same-sex relationship is discriminatory when such adoption is possible for unmarried heterosexual couples, although the exclusion of the biological parent. The reasoning may be thus summarised: If the woman had been a man, the adoption would have been possible, so it must be possible in the name of non-discrimination according to sexual orientation while the woman is not a man."
                                            
The two (unmarried) women who took action on their own behalf and on the behalf of the child who was a minor, claimed to have suffered discrimination based on their sexual orientation and invoked the right to respect for their private and family life (art. 8) as well as the prohibition of discrimination (art.14). “They submit 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, 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 registrar of the Court.)
 
A slight majority of the judges (10 out of 17) adopted the reasoning of the LGBT organisations that supported this case (ILGA, ECSOL, FIDH, etc.). In contrast, the opinion published in the appendix of the seven dissenting judges cited and largely reflects the written comments submitted by the ECLJ to the Grand Chamber.
 
According to Austrian law, such an adoption is not possible because a child cannot have parentage divided between more than two parents who have to be a man and a woman, and the person adopting the child substitutes themselves for the biological parent of the same sex as them (art. 182 para 2 of the Austrian Civil Code). Thus, the adoption by a woman would break the relationship with his biological mother.
 
The two women have argued that when the couple is heterosexual, a man living with the mother of a child can replace the father and adopt the child (the same as a woman living with the father of a child can, in theory, replace the mother). However, in this case, the natural parent loses all ties to the child, even the right to see him. Such an adoption by substitution requires the renunciation by the parent of their parental rights or a court decision declaring the unworthiness of the parent to maintain his rights, if it is considered to be in the best interests of the child.
 
However, the mother and her new partner wanted to exclude the father in order to “found” a new family. In order for the mother’s partner to be allowed to establish parental rights, the two women asked the father to give up his own parental rights. The father refused; in fact, he maintains regular contact with his son, who bears his name and he also pays alimony. The women asked the Austrian courts to deprive the father of his rights so that the female partner could take his place as the second parent. After examining the case, the Austrian authorities found the application contrary to the best interests of the child and refused. The two women then proceeded to take their case to the European Court.

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