This guest post – the first in a two-post series on X. and Others v. Austria – was written by Grégor Puppinck*
On the 19th of February, the Grand Chamber of the European Court of Human Rights published its ruling in the case of X and others v. Austria (no. 19010/07), which decided by ten votes against seven, that the impossibility of second-parent adoption in a same-sex relationship is discriminatory when such adoption is possible for unmarried different-sex couples. The reasoning may be thus summarised: If the woman had been a man, the adoption would have been possible, so it must be possible while the woman is not a man in the name of non-discrimination according to sexual orientation.
The two unmarried women, who took action on their own behalf and on the behalf of the child who was a minor, claimed to have suffered discrimination based on their sexual orientation and invoked the right to respect for their private and family life (art. 8) as well as the prohibition of discrimination (art 14). “They submit that there is no reasonable and objective justification for allowing adoption of one partner’s child by the other partner if heterosexual couples are concerned, while prohibiting the adoption of one partner’s child by the other partner in the case of homosexual couples.” (Presentation of facts made by the registrar of the Court.)
According to Austrian law, such an adoption is not possible since a child can not have parentage divided between more than two parents who can only be a man and a woman, and the person adopting the child substitutes themselves for the biological parent of the same sex as them (art. 182 §2 of the Austrian Civil Code). Thus, the adoption of the child by the female partner of his mother would break his relationship with his biological mother.
The two women have argued that when the couple is heterosexual, a man living with the mother of a child can replace the father and adopt the child (the same as a woman living with the father of a child can, in theory, replace the mother). However, in this case, the natural parent loses all ties to the child, even the right to see him. Such an adoption by substitution requires the renunciation by the parent of their parental rights or a court decision declaring the unworthiness of the parent to maintain his rights, if it is considered to be in the best interests of the child.
In order for the mother’s partner be allowed to establish parental rights over the child, the two women asked the father to give up his own parental rights. The father refused; in fact, he maintains regular contact with his son who bears his name and he also pays alimony. The women asked the Austrian courts to deprive the father of his rights so that the female partner could take his place as second parent. After examination of the case, the Austrian authorities found the application contrary to the best interests of the child and refused. The two women took their case before the European Court.
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 tie with both parents. The child is thus, not adoptable, whatever may be the sexual orientation or situation of the adults surrounding him. However, from the point of view of the adults, the case is more complicated as it is not the interests of the child that were being primarily considered, but equality between heterosexual and homosexual couples regarding their right to adopt.
The majority ignored the fact that this child is not adoptable and focused on assessing the proportionality of the law from the finding that “as Article 182 § 2 of the Civil Code contains an absolute prohibition on second-parent adoption in a same-sex couple” (§125) it prevented the national courts from considering “whether there were any reasons which might justify overriding the father’s refusal to consent” (§ 124) and allowing the adoption. The majority ignores, for the necessity of its reasoning, the fact that the Austrian courts did consider the particular circumstances of the case and concluded that such an adoption would not be in the best interests of the child. However, the Grand Chamber limited its analysis on the law and its discriminatory effects and abstained to appreciate the case in concreto, notably the interests of the child but of the father. The majority asked in abstracto whether the adoption would have been possible in the event that applicants were not of the same sex. The Court thus, found that if the mother’s partner had been a man -“Had the first and third applicants been an unmarried different-sex couple” (§ 125) - it would not have been impossible for him to become an adoptive father. The Court considers that this establishes the existence of a difference in treatment based on the sexual orientation of the two women (§ 130).
This finding necessitates assimilating the physical sexual difference between a heterosexual and a homosexual couple to a difference in sexual “orientation”. But, on the subject of filiations, it is the physical sexual identity of the parents which matters, and not their orientation.
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 France; E.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, one must consider that it may be in the best interests of the child to allow the mother’s partner to replace the father; this issue should have been resolved in court. The absolute prohibition on second-parent adoption in a same-sex couple implicitly contained in article 182 § 2 of the Civil Code is thus disproportionate, and is discriminatory when compared with unmarried different-sex couples. Finally, Austria has been condemned as it has no convincing motives for not providing for a child to have two fathers or two mothers, while it may have a father and a mother.
To execute the Court’s ruling, Austria could legislate declaring that a child may have more than two parents at the same time and/or can have two parents of the same sex. In that case, the two claimant women will be able to make the father appear in Court and attempt to deprive him of his parental rights. This may contradict the Convention on the rights of the child which states, inter alia, 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).
This ruling has far reaching consequences. Even if the majority of the Grand Chamber “has accepted that the protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment” (§ 138), in reality, the majority gave preference to a non-biological and asexual understanding of the family, in which the natural family is but one of the multiple types. In addition, by affirming that it is in principle and a priori equally good for a child to have two parents of the same-sex or having two parents of different sex with a biological filiation, the Court justified the claim that same-sex couples have an equal right to having a child, like heterosexual couples, whether it be by adoption or by artificial procreation.
The ideology underpinning this ruling is not new within the ECHR; it is a mix of positivism and historicism which consider firstly that the law (the human will) prevails over reality (positivism): this allows a child to have more than two parents or two parents of the same sex, which is impossible in the real world. Secondly, this ideology refutes any rules imposed by morality and by the reference to nature are “in themselves sufficient reasons for a complete ban” (S. H. v Austria I §74); from this steams the liberal doxa of deregulation which supports that nothing should be prohibited as an absolute manner, because in morality no truth could be provable, every situation would be culturally relative (historicism). As a result, all impossibilities or interdictions should be disputable in courts. Thus the Court recently condemned Germany for banning in an absolute manner euthanasia without offering the possibility to asses in Court the legitimacy of the demand in case (Koch v Germany).
In such a sensitive matter, far ahead from the original content of the Convention, despite the internal division of the Court and of European countries on this matter, the tiny majority of judges chose to take “a forceful step” to impose its choice. This step may please some section of the public opinion, but it is not legally convincing, and it will ultimately weaken the authority of the Court among “those sectors of society which are opposed to the idea of opening up second-parent adoption to same-sex couples” (§ 143) who are probably the majority in the 47 Member States.
* * *
Grégor Puppinck, PhD, is the Director of the European Centre for Law and Justice, Strasbourg. The ECLJ’s written comments submitted to the Grand Chamber are cited in the opinion of the seven dissenting judges.