European Court of Human Rights rules for same-sex adoptions

by Mike Andrew - SGN Staff Writer

The European Court of Human Rights ruled on February 19 that Austria's civil code is discriminatory because it bars a partner in a same-sex relationship form adopting his or her partner's biological child, while allowing so-called "second parent adoptions' for unmarried opposite-sex couples.

In the case of X and Others v. Austria the justices ruled by a 10-7 vote that the Austrian law violated Article 14 of the European Convention on Human Rights, which deals with discrimination, and Article 8, on the right to privacy and family life.

The case involved a Lesbian couple - called "the first and third applicants' in court documents - living with the biological child of one of the partners, named "the second applicant.'

"The applicants live in a common household and the first and third applicants jointly care for the second applicant,' court documents say.

"By agreement concluded on 17 February 2005, the first applicant adopted the third applicant's son. The applicants' intention was to create a legal relationship between the first and the second applicant corresponding to the bond between them, without severing the relationship with his mother, the third applicant. As required by law, the applicants submitted the adoption agreement to the competent District Court for approval.'

Because their application for adoption was rejected by Austrian courts, the couple and their child appealed to the European Court of Human Rights.

LEGAL IN 11 COUNTRIES
Currently, second-parent adoption is permitted in 11 European countries: Belgium, Denmark, Finland, Germany, Iceland, the Netherlands, Norway, Slovenia, Spain, Sweden, and the United Kingdom.

New legislation that would allow it is planned in France, Luxembourg, and Switzerland.

As a result of the court's judgment, laws in Austria, Andorra, parts of Bosnia and Herzegovina, Liechtenstein, Portugal, and Romania will have to be amended to allow same-sex couples to apply for second-parent adoption, because these countries already permit unmarried heterosexual couples to do so.

According to LGBT rights advocates, children in same-sex families are highly vulnerable due to a lack of legal recognition and their inability to establish legal links to both of their parents.

"With today's decision, the Court clearly asserts that families are families, regardless of the sex of the parents, and that barriers to legal recognition and protection based on sexual orientation serve the interests of neither parents nor children,' Alli Jernow, senior legal advisor to the International Commission of Jurists, said of the ruling.

ILGA WELCOMES RULING
"This is a very significant and important victory for rainbow families in Europe,' Martin Christensen of the International Lesbian and Gay Association (ILGA) said in a statement.

"We hope that this judgment will pave the way towards the removal of the remaining legal barriers for these families in Europe. The lack of recognition and the inability for partners in same-sex families to establish legal links to their children is not only discriminatory and creates a number of legal uncertainties, but also has a profound and detrimental impact on the everyday lives of these families and the well-being of the children in those families. The principle of the best interests of the child needs to be upheld without exception.'

The European Court of Human Rights was established in 1959 to hear cases alleging violations of the European Convention on Human Rights, a treaty to which all European countries except Belarus are parties. By itself, the court has no jurisdiction to overturn national laws, but the Committee of Ministers of the Council of Europe is charged with executing the court's judgments.

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