Fridae

The European Court for Human Rights this week ruled in favour of an unnamed Austrian lesbian couple seeking to have a second-parent adoption for their son who was born to one of them in 1995.

Human Rights Building. Photo: Council of Europe

The woman who brought the case can now become the adoptive parent of her same-sex partner's son. The court ruled that the Austrian state had discriminated against a woman by refusing to consider her request to adopt her female partner's biological child.

The court also found that in countries where unmarried straight couples are not prohibited from joint adoption, then the same rule can be applied to unmarried gay people.

The jury found that there was no reason to believe that the couple and their son weren't a family and found no evidence of harm to the child for having same-sex parents.

In 1995, the couple, who are now 46, submitted an adoption application to a local court and also sought for the Austria Constitutional Court, which is the country’s highest tribunal, to declare the law that prevents the same-sex partner of a parent to adopt his or her child unconstitutional.

The Constitutional Court in June 2005 rejected the couple’s petition while the local court four months later rejected the women’s application. A regional court in 2006 rejected the women’s appeal.

In April 2007, the couple brought their case to the European Court of Human Rights, which is located in Strasbourg, France, after the Constitutional Court ruled against them.

The court's ruling however didn't oblige other member states to extend the right of second-parent adoption to unmarried couples.

The press release about the case can be found here: Grand Chamber judgment X and others v. Austria 19.02.13

Impossibility of second-parent adoption in a same-sex relationship in Austria is discriminatory in comparison with situation of unmarried different-sex couples

Extraact: There was no obligation under Article 8 [(right to respect for private and family life) of the European Convention on Human Rights] to extend the right to second-parent adoption to unmarried couples. Given that Austrian law did allow second-parent adoption in unmarried different-sex couples, however, the Court had to examine whether refusing that right to (unmarried) same-sex couples served a legitimate aim and was proportionate to that aim.

The Austrian courts and the Government had argued that Austrian adoption law was aimed at recreating the circumstances of a biological family. The Court accepted that the protection of the family in the traditional sense was in principle a legitimate reason which could justify a difference in treatment, as was the protection of the child’s interests.

However, according to the Court’s case-law, in cases where a difference in treatment based on sex or sexual orientation was concerned, the Government had to show that that difference was necessary to achieve the aim. The Austrian Government had not provided any evidence to show that it would be detrimental to a child to be brought up by a same-sex couple or to have two mothers and two fathers for legal purposes.

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In sum, the Court found that the Government had failed to give convincing reasons to show that excluding second parent adoption in a same-sex couple, while allowing that possibility in an unmarried different sex couple, was necessary for the protection of the family in the traditional sense or for the protection of the interests of the child. The distinction was therefore discriminatory. There had accordingly been a violation of Article 14 taken in conjunction with Article 8.