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

Aleteia - published on 02/21/13


Thus, from the point of view of the interests of the child, the matter was simple: the child already had a father and mother, neither of whom wish to nor should have to give up their parental rights, the interests of the child were to keep a legal family ties with his both parents. The child is thus, not adoptable.
However, from the point of view of the adults, the case was more complicated as it is not the interests of the child that were being considered, but instead, equality between heterosexual and homosexual couples. It concerned equal rights over children. The difference in situation between heterosexual and homosexual couples in their inability to “have” children was perceived as discriminatory.

The case of adoption considered only from the perspective of the rights of adults

It is only from the perspective of the rights of adults in adoption and only in light of equality that the majority of judges ruled. The majority ignored the specific circumstances of the case and focused on the law, considering that “as Article 182 para 2 of the Civil Code contains an absolute prohibition on second-parent adoption in a same-sex couple, making any examination of the specific circumstances of their case unnecessary and irrelevant and leading to the refusal of their adoption request as a matter of principle” (para 126) The Grand Chamber held that this absolute prohibition had prevented the national courts from considering whether the best interests of the child would be met by the adoption by the mother’s partner and had prevented examining “whether there were any reasons which might justify overriding the father’s refusal to consent (para 124).  However the factual evidence stands to the contrary: the Austrian courts also considered that, having regard to the particular circumstances of the case, such an adoption would not be in the best interests of the child. However, this reproach could be used against the Grand Chamber; since it abstained from appreciating, in concreto, the interests of the child and of the father. The father did not participate in the proceedings at the European Court; perhaps he was not aware of the case as the applicants were granted anonymity. The son also was not present before the Court either: being a minor, his mother acted in his name before the Court.


A case considered in abstracto through the prism of equality

The majority of judges limited their analysis of the general principles. They asked in abstracto whether the adoption would have been possible if the applicants were not of the same sex. The Court thus, found that if the mother’s partner had been a man, it would have been possible for him to become an adoptive father.
“Had the first and third applicants been an unmarried different-sex couple, the domestic courts would not have been able to refuse the adoption request as a matter of principle. Instead, the courts would have been required to examine whether the adoption served the second applicant’s interests within the meaning of Article 180a of the Civil Code. If the child’s father had not consented to the adoption, the courts would have had to examine whether there were exceptional circumstances such as to justify overriding his refusal underArticle 181 § 3 of the Civil Code.” (para 125.)

For the Court, this establishes the existence of a difference in treatment based on the sexual orientation of the two women (para 130).
If one considers, as found by the majority, that neither the sexual otherness nor the biological parentage is crucial to be “the parent” of the child; then there is discrimination. The Court established this by evaluating and eliminating one by the one the justifications provided by the government in support of its legislation:

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