Court hearing for Austria gay adoption rights dispute

A human rights court hearing is scheduled for tomorrow which will bring into focus the adoption rights of an Austrian gay couple.

Chamber hearing X. and Others v. Austria (application no. 19010/07)

The case concerns the complaint by two women, who live in a stable homosexual relationship, about the Austrian courts’ refusal to grant one of the partners the right to adopt the son of the other partner without severing the mother’s legal ties with the child (second-parent adoption).

The applicants are two Austrian women (“the first and the third applicant”), both born in 1967, who live in a stable homosexual relationship, and the son of one of them (“the second applicant”). The latter was born out of wedlock in 1995 and his mother has sole custody of him. The applicants live together and the two women jointly care for the child.

Wishing to create a legal relationship between the first applicant and the child without severing the relationship with his mother, they concluded an adoption agreement in February 2005 and submitted it to the competent district court for approval. Being aware that the relevant provisions of the Civil Code could be understood to exclude the adoption of the child of one partner of a homosexual couple by the other partner without severing the relationship with the natural parent, the applicants requested the Constitutional Court to declare those provisions unconstitutional as
discriminating against them on account of their sexual orientation.

The Constitutional Court rejected the request as inadmissible in June 2005, pending the decision of the district court. In their request for the district court to approve the adoption agreement, the applicants noted that the second applicant’s father, who did not live together with them, refused to agree to the adoption. However, in the applicants’ view, he had failed to give valid reasons for his position and the adoption was in the best interests of the child.

They submitted a report from the Youth Welfare Office, confirming that the two women shared the care of the child and the responsibility for his upbringing, and concluding that the award of joint custody would be desirable. In October 2005, the district court refused to approve the adoption agreement, holding that the Civil Code envisaged that in case of an adoption by one person the adopting parent replaced the natural parent of the same
sex, thus severing the child’s relationship with him or her. In the case at hand, the child’s adoption by the first applicant would sever his relationship with his mother, not with his father.

The applicants’ appeal was dismissed by the regional court in February 2006. In addition to the considerations of the district court, it observed that Austrian law, while not giving a precise definition of the term “parents”, plainly envisaged two people of different sex.

Where, as in the present case, a child had both parents there was no need to replace one of them by an adoptive parent. In that connection, the court noted that the child had regular contacts with his father. In September 2006, the Supreme Court dismissed the applicants’ appeal on point of law, holding that the relevant provisions of the Civil Code did not disclose any appearance of being unconstitutional.

The applicants complain under Article 14 (prohibition of discrimination) of the European Convention on Human Rights taken in conjunction with Article 8 (right to respect for private and family life) that they are being discriminated against on account of their sexual orientation. 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.

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