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

Aleteia - published on 02/21/13 - updated on 06/07/17

The majority then evaluated and eliminated one by the one the justifications provided by the government in support of its legislation:
– the Court notes that the Government has not “adduce[d] any specific argument, any scientific studies or any other item of evidence to show that a family with two parents of the same sex could in no circumstances adequately provide for a child’s needs” (§ 142).
– The Court then disregards the Austrian law itself, affirming that “it merely reflects the position of those sectors of society which are opposed to the idea of opening up second-parent adoption to same-sex couples” (§ 143). Where is the minimum respect which the Court, in a European legal system based on the rule of law, is supposed to hold towards the national law and legislator, particularly under the principle of subsidiary? With such a statement, the Court openly places itself above the law on behalf of its enlightened conception of rights.
– the Court criticises the Austrian law to “lack coherence” in that it explicitly states that a child should not have two mothers or two fathers but allows adoption by a single person, even if this person is a homosexual and lives as a couple (§ 144). Note that the Court itself requires that when the adoption is open to an unmarried person, it shall be available without discrimination based on sexual orientation (Fretté v FranceE.B. v France).
The Court finally dismisses the observation of the government regarding the obvious lack of consensus in Europe on homosexual adoption (§147 – 150): the teleological use of the notion of consensus proving here again to be legally unsatisfactory.

The Court finds that the government failed to “show that it would be detrimental to the child to be brought up by a same-sex couple or to have two mothers and two fathers for legal purposes” (para 146). Therefore, according to the Court, it cannot be excluded that it may be in the best interests of the child to allow the mother’s partner to replace the father; this issue should be resolved in court. This conclusion applies to all 47 states parties to the Convention: to not allow homosexual adoption, it must be proven that it is harmful to the child. But is it still possible in Europe to argue that having two mothers and two fathers is harmful? This is doubtful as it implies a negative judgment on homosexuality, which is widely prohibited in Europe.
Finally, Austria has been condemned as it does not make legally possible for a child to have two fathers or two mothers, while it may have a father and a mother.

Thelaw prevails over reality

The main problem in this case is how the majority of judges deal with reality. They disregard the natural difference between a man and a woman, and the reality of the family and of the children. Everything is analysed in light of equality between heterosexual and homosexual sentiments. The physical sexual difference between a heterosexual and a homosexual couple is wrongly reduced to a simple difference in sexual “orientation”. Therefore, if the principle of non-discrimination depends on sexual orientation it would bring with it a prohibition on making distinctions according to the sexual identity of parents. Nevertheless, on the subject of filiations, it is the physical sexual identity of the parents which matters, and not their orientation.

Reality always precedes law: law is modelled on reality and on human relationships. If one distorts the understanding of reality, all of law becomes altered. Thus, the legal system for adoption is “made to fit” the natural family. The claimants complain of not being able to fulfil the requirements of this legal system, and they argue that this material impossibility constitutes a legal interdiction. The “interdiction” appears when the “reality”, on which the legislation is based disappears.

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