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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

It is also doubtful that it complies with international law since it extends the State’s obligations much further than they sovereignly consented to when ratifying the European Convention on Human Rights. Moreover, one can presume that the new obligation established through this case goes against the will of a large proportion of the 47 states parties to the Convention where it is supposed to apply, particularly against the will of Portugal, Romania, Russia and Ukraine which explicitly prohibit the possibility of “co-parental” adoption by a same-sex partner. These states can, like the ten judges did, retort that this case “does nothing but “merely reflects the position of those sectors of the [Court] which are [favorable] to the idea of opening up second-parent adoption to same-sex couples” (para 143); this shows how dangerous it is for a Court to disregard the legitimate law, and the rule of law.

A ruling which weakens the Court and human rights

More generally, what can be the impact of this case when no less than seven judges expressed a dissenting opinion, two vice-presidents out of the 17 in the Grand Chamber, (judges Casadevall, Ziemele, Kovler, Jociene, Sikuta, De Gaetano and Sicilianos)? And out of the 10 judges in the majority, how many of them preferred to follow the LBGT political correctness rather than seriously considering the case? In a case on this ideological point which is so far removed from the original content of the Convention, the Court should have chosen the wisdom of law instead of the audacity of ideology. Despite its internal division, the tiny majority of judges chose instead to take “a forceful step” to impose its choice with the risk of weakening the Court and human rights.

There is no doubt that opponents of the Court will see this decision as a new reason to rejoice. The Court is internally divided and its prestige and authority are weakened among the public opinion of the 47 member states.

The Court has adopted an enthusiastic logic for some people, for others it is worrying one. Depending on one’s degree of attachment to human reality, they will see in this ruling audacity or irrationality.

*        *        *

Documents of reference:

Grand Chamber judgment
Written observations from the ECLJ for the case X and Ors v Austria (no. 19010/07) (only available in French)
ECLJ, Synoptic analysis of the case X and Others v Austria (no. 1901/07)
Video of the hearing from 3/10/2012 

The European Centre for Law and Justice is an international, Non-Governmental Organization dedicated to the promotion and protection of human rights in Europe and worldwide. The ECLJ holds special Consultative Status before the United Nations/ECOSOC since 2007.
The ECLJ engages legal, legislative, and cultural issues by implementing an effective strategy of advocacy, education, and litigation. The ECLJ advocates in particular the protection of religious freedoms and the dignity of the person with the European Court of Human Rights and the other mechanisms afforded by the United Nations, the Council of Europe, the European Parliament, the Organization for Security and Cooperation in Europe (OSCE), and others. The ECLJ bases its action on “the spiritual and moral values which are the common heritage of European peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy” (Preamble of the Statute of the Council of Europe).

[1] Convention on Protection of Children and Co-operation in respect of Inter-country Adoption (art. 1) and the Convention on the Rights of the Child (art. 9 and 21)

[2] Convention on the Rights of the Child (art. 5) and the European Convention on the Legal Status of Children Born out of Wedlock (art. 6)  

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