Homosexual adoption before the European Court of Human Rights The case of X and others v. Austria

On 3rd October 2012, the Grand Chamber of the European Court of Human Rights will hear a case of “homosexual adoption” concerning the impossibility for a woman to adopt the son of her female partner (X and others v. Austria, no. 19010/07). The two women consider it an infringement of their private life and discriminatory. The judgement will be pronounced by the Grand Chamber, the highest European judicial authority concerning human rights, without any possible appeal. Grand Chamber judgements determine the case-law of the Court and have authority on the 47 member States of the Council of Europe[1].

The European Centre for Law and Justice (ECLJ) was granted leave to intervene as third party (amicus curiae) and submitted written comments to the Grand Chamber (available here).

The two women who submitted the case to the Court – in their own names and in the name of the under-age son of one of them – live together in a stable relationship and want legally to become a “family”, recognised as such by society, through the adoption of the boy by the partner of his mother.

According to Austrian law, adoption by a man severs the link between the child and his/her biological father, adoption by a woman severs the link with the biological mother. Moreover, needless to specify, a child cannot have his/her filiation established with more than two parents. The two women claim that the consequence of this rule is to prohibit adoption by the same-sex partner of the biological parent, therefore it constitutes discrimination based on sexual orientation. They specify that such an adoption is possible in a heterosexual stepfamily as, under certain conditions, a man living with the mother of the child can replace the father and adopt the child; similarly, the woman living with the father of the child can theoretically substitute for the mother. In such cases, the biological parent loses all personal and legal links with their child; they do not even have the right to see the child. Such an adoption with substitution requires either the consent of the parent losing their right or a court decision based on the interest of the child and the indignity of the biological parent (in case of abuse or complete disinterest for the child).

As the father refused to renounce his rights, the two partners asked the Austrian courts to deprive him of his parental rights and authorise the adoption so that the adopting woman replaced the father.

The Austrian authorities declared that this adoption would be contrary to the interest of the child and refused it. In substance, they judged that a woman could not substitute for the father and there was no cause for depriving the father of his rights; moreover, it would be contrary to the interest of the child to substitute the stepmother for the mother and thus sever the link of the boy with his mother.

In sum, the child already has a father and a mother, neither of whom is willing nor obliged to renounce his parental rights over the child. Therefore the child is not adoptable under Austrian law. That is the case submitted by the European Court by the two women, in their names and in the name of the under-age child. They complain that their private and family life has been infringed (Art. 8) and they were discriminated against because of their sexual orientation (Art. 14).

This case is supported by the international LGBT lobby. The Counsel of the applicants, Helmut Graupner, is the director for Europe of the International Lesbian, Gay, Bisexual, Transgender & Intersex Law Association (ILGLaw) as well as legal counsel of ILGA-Europe. He is also a member of ECSOL, a European network of LGBT activist lawyers. These organisations are third parties in the case with other LGBT lobbies[2] and have submitted observations to the Court.

The issue the applicants and LGBT organisations want to submit to the Court is that of homosexual step-parent adoption. This is one of the three kinds of adoption claimed by LGBT groups, with adoption by single homosexuals and adoption by homosexual couples, respectively examined by the Court in the cases of E. B. v. France in 2008 and Gas and Dubois v. France in 2012.

The perusal of the facts as presented by the registry does not give any information about the father, except that he is blamed for not giving valid reasons to refuse the adoption. Actually, after more thorough research, it turns out that the father was not a mere reproductive tool – such as a sperm donor – as could have been presumed. The domestic courts specify that the father has regular contacts with his son. Supplementary information adds that the child was brought in from a former relationship, that he bears his father’s name and that the father pays alimony for him. In other words, this child, like many others whose parents have split up, lives with his mother and has a father whom he goes on seeing and who cares for him.

Actually, the case is very simple: the two female partners want to oust the father and, since the law does not allow them to do so, they claim it is discriminatory.

Even before examining the law, two factual questions arise at once:

• Is the father informed of the proceedings in Strasbourg? One can legitimately wonder, since the applicants have been granted anonymity. Leading such proceedings without his knowledge would be unfair, he would not be given the opportunity to be heard although he has a definite interest in the case[3].
• Does the son agree? Nothing indicates it in the statement of facts; on the contrary, as he is under age, his mother acts in his name and he is represented by the same lawyer as his mother and her partner.

From a strictly legal point of view, the case is simple and one can hardly understand why it has been referred to the Grand Chamber. It should be solved in the following way: there is no right to adoption; moreover the child is not adoptable. However, as soon as “homosexual rights” are involved, everything becomes complicated for fear of being considered homophobic if one does not satisfy them. Therefore, a deeper legal analysis is required. Here are its main lines:

The father has the right and the duty to go on caring for his son

The father has the right and the duty to go on caring for his son both under national and international law (especially Convention on the Rights of the Child Art. 5, European Convention on the Legal Status of Children born out of Wedlock Art. 6).

International conventions relating to adoption insist on the necessity of the consent of the biological parents[4] as a prerequisite for adoption. Without free and informed consent, given in writing, the child cannot be adopted. To ensure the consent is free, treaties specify that it may not be induced by payment or compensation of any kind. Parents may obviously not be blamed for refusing their consent.

The best interest of the child is to keep is father and mother

According to the Hague Convention On Protection Of Children And Co-Operation In Respect Of Intercountry Adoption (Art. 1) and the Convention on the Rights of the Child (Art. 21), in an adoption, the best interests of the child shall be the paramount consideration.

Now, the best interest of the child it to maintain relations with his father and mother, and this is a right of the child (Art. 9 of the Convention on the Rights of the Child). The applicants ignore it.

There is no right to adoption

The European Convention does not guarantee a right to a child, or a right to adopt or be adopted[5]. The aim of adoption is the interest of the child: give a family to a child who does not have one. Where a family tie is established between a parent and a child, “particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent”[6].

The European Court has admitted that it was legitimate to keep the natural family model both for medically assisted reproduction[7] and adoption[8]. Because adoption is based on the natural family, a child cannot be subject to multiple adoptions, adoptive parents must be of childbearing age and adoption is definitive. Adoption modifies the filiation link, which is an essential element of identity. Therefore, it must respect the child’s identity and rights, which would not be the case if a filiation inconsistent with reality was admitted. In S. H. v. Austria, the Grand Chamber recognised that it was legitimate for the State to refuse voluntarily to create complex situations inconsistent with natural reality.

Concerning this reference to biological reality, the European Court has already recognised that it was legitimate that the adoption of a minor severs the link with his biological parents[9], and thus that adoption does not allow a minor to have more than two parents.

Admitting extravagant filiations, not rooted in reality, constitutes a severe breach of the natural rights of the child, especially of the security and references they need to grow, and a clear violation of the Convention on the Rights of the Child which states that the child has, “as far as possible, the right to know and be cared for by his or her parents” (Art. 7) and the right “to preserve his or her identity, including nationality, name and family relations” (Art. 8).

Finally, what is at stake in this case is the extent of the power of adults on children. Not only are children shifted around following the swing of adults’ love affairs and separated from their father or mother because of divorce; now adults should allegedly be allowed to falsify children’s filiation to satisfy their own desires and wipe out their past, even if they obliterate that of the child as well. The reality of filiation is a natural root which protects children against the egotism and fickleness of adults.

The ECLJ hopes that the Grand Chamber judges will not be dazzled and blinded by the sensitiveness of the issue and the fear of being called “homophobic”. Such fear is unreasonable because what is at stake in this case is not the rights of a couple of lesbians but those of a father and his son.

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Related Documents :

• Statement of facts by the Court
• Public hearing webcast of 1st December 2011
• Written comments of the ECLJ in the case of X and others v. Austria, no. 19010/07, (French only)
• ECLJ, Overall analysis of the case of  X and others v. Austria, no. 19010/07, (French only)
• About the ECHR case of Gas and Dubois v. France

The European Centre for Law and Justice (ECLJ) is an international, Non-Governmental Organization dedicated to the promotion and protection of human rights. The ECLJ has held special Consultative Status before the United Nations/ECOSOC since 2007. 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, and the Organization for Security and Cooperation in Europe (OSCE).

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] The case had first been attributed to the First Section which held a public hearing on 1st December 2011 (available here) but the Section relinquished jurisdiction in favour of the Grand Chamber. In such cases, the Grand Chamber (always composed of 17 judges) includes the 9 judges of the Section to make a final decision on the case. A section can relinquish jurisdiction when its intended judgement contradicts former case-law, when a new legal issue is raised or actually when it thinks time has come to enshrine a new right, which seems to be the case here: the former case-law did not recognise a right to adoption by homosexuals (Gas and Dubois v. France). Therefore, if the case-law changes, it can change only in favour of homosexual couples.

[2] FIDH (Fédération Internationale des ligues des Droits de l'Homme), ICJ (International Commission of Jurists), ILGA-Europe (the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association), BAAF (British Association for Adoption and Fostering), NELFA (Network of European LGBT Families Associations), et ECSOL (European Commission on Sexual Orientation Law).

[3] Art. 9-2 of the Convention on the Rights of the Child : “In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known”.

[4] 1993 Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption Art. 4 and European on the Adoption of Children (Revised, 2008) art. 5.

[5] E.B. v. France [GC], no. 43546/02, § 41, 22 January 2008, Schwizgebel v. Switzerland, 10 June 2010, no. 25762/07 § 72 ; Gas and Dubois v. France, 5 March 2012, no. 25951/07§ 37

[6] Schwizgebel v. Switzerland, 10 June 2010, no. 25762/07, § 95; see E.P. v. Italy, no. 31127/96, § 62, 16 November 1999 and Johansen v. Norway, 7 August 1996, § 78, Reports 1996-III.

[7] S.H. v. Austria, GC, 3 November 2011, no. 57813/00 § 104.

[8] Schwizgebel v. Switzerland, 10 June 2010, no.  25762/07, § 88s

[9] Emonet v. Switzerland, 13 December 2007, no. 39051/03, § 80, Gas and Dubois v. France, 15 March 2012, no. 25951/07, § 72