ECHR: Unmarried Same-Sex and Different-Sex Couples Entitled to Equal Treatment

A Grand Chamber (17 judges) of the European Court of Human Rights (based in Strasbourg) ruled on February 19 that Austria violated the European Convention for the Protection of Human Rights and Fundamental Freedoms by maintaining a statutory scheme under which “second-parent” adoptions are available for unmarried different-sex couples but not for same-sex couples (who do not have the right to marry in Austria).  By a vote of 10-7, the court found that the applicants in the case, a lesbian couple and the son they are raising, are entitled to a new trial to determine whether the best interests of the child justify overruling the objections of his biological father to the proposed adoption by his mother’s same-sex partner.  X and Others v. Austria, Application No. 19010/07.  Ironically, this case has dragged on so long since the adoption petition was filed in 2005 that the child will probably reach the age of majority before the case is finally resolved.

Under Austrian law, same-sex couples cannot jointly adopt children, but there is no bar to individual gay adults adopting a child.  However, in the case of unmarried adult partners where one wishes to adopt the child of the other, the consent of the child’s other parent may be required, although a court can overrule such objections if it finds that the best interest of the child will be served by doing so, and the adoption may not result in the child having two mothers or two fathers.  The Austrian statutes require that if a child is to have two legal parents, they must be one man and one woman. 

In this case, the birth mother had a child with a man to whom she was not married and was not cohabiting.  She is recognized as sole custodian of the child, who was born in 1995, but the father “has recognised paternity” and has maintained a relationship with the child, seeing him regularly and providing financial support.  Since the child was five years old, he and his mother have been living together with his mother’s same-sex partner.  In 2005, the three of them made an agreement for the partner to adopt the child without terminating the parental status and rights of his mother, but the father, whose parental status would be affected by this adoption, objected to the application they filed with the District Court.  That court found that under the Austrian statutes this adoption could not be approved, because it would result in the child having two mothers.  The court did not have to get to the question whether the father’s objections should be overruled.  Through the Austrian appellate process to the Regional Court and the Constitutional Court, the Austrian courts all rejected the argument that this restriction violates the constitutional rights of the applicants, or their rights under the European Convention, to which Austria is a party.

Before the European Court, the applicants asserted that they were not seeking to have equal rights with different-sex married couples, but rather were seeking to be treated equally with unmarried different-sex couples.  This was a prudent move, since the European Court has found in recent litigation involving Austria that the equality requirements (Article 14) as applied to the right to respect for private life (Article 8) do not require parties to the Convention to allow same-sex couples to marry, although the Court may get there some day as a trend towards allowing same-sex marriage spreads among the countries bound by the Convention.  (The possible addition of Britain and France this year could have an important effect in that regard.)  Thus, court was unanimous in concluding that a comparison to the “second-parent” adoption rights of married couples (what in the U.S. we commonly call step-parent adoption) was not appropriate, because of the special legal status attached to marriage.

However, 10 of the 17 judges agreed that in a comparison between unmarried different-sex couples and unmarried same-sex couples, the government should have the burden of showing that “the protection of the family in the traditional sense and, more specifically, the protection of the child’s interests, require the exclusion of same-sex couples from second-parent adoption, which is open to unmarried heterosexual couples.”   The court found that Austria failed to meet this burden.  “The Government did not adduce 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.  On the contrary, they conceded that, in personal terms, same-sex couples could be as suitable or unsuitable as different-sex couples when it came to adopting children.”

The court found that Austria’s legislative scheme “appears to lack coherence.”  Since 2010 Austria has provided registered partnerships for same-sex couples.  The adoption law allows individual gay people to adopt, but neither the adoption law nor the registered partnership law allows same-sex couples to adopt jointly.  (Indeed, the partnership law expressly forbids such joint adoptions, but since it was enacted to go into effect in 2010, it does not apply to this case, which was filed in 2005.)  An individual gay person who is part of a registered couple may adopt, but is required to secure the consent of his or her same-sex partner! 

“The legislature therefore accepts that a child may grow up in a family based on a same-sex couple,” the court observed, “thus accepting that this is not detrimental to the child.  Nevertheless, Austrian law insists that a child should not have two mothers or two fathers.”   The court found that the evidence casts “considerable doubt on the proportionality of the absolute prohibition on second-parent adoption in same-sex couples.  Unless any other particularly convincing and weighty reasons militate in favour of such an absolute prohibition, the considerations adduced so far would seem rather to weigh in favor of allowing the courts to carry out an examination of each individual case.  This would also appear to be more in keeping with the best interests of the child, which is a key notion in the relevant international instruments.”

The court noted that the “margin of appreciation” for countries to take actions that appear to violate the equality principle in the Convention is narrow in cases of sexual orientation, which has been identified in past decisions as a disfavored ground for discrimination.  The European Court makes its decisions on such matters with reference to European trends.  Interestingly, most of the nations governed by the  Convention do not allow “second-parent” adoptions by unmarried couples, regardless whether they are same-sex or different-sex, but of those ten countries that do allow such adoptions, a slight majority at this point (6 out of 10) do allow second-parent adoptions by same-sex couples. In terms of discerning a trend, however, the court decided that “the narrowness of this sample is such that no conclusions can be drawn as to the existence of a possible consensus among Council of Europe member States.”

The court also briefly discussed the 2008 Convention on the Adoption of Children, which does not specifically authorize second-parent adoptions for same-sex couples but indicates that states who are bound by that Convention may allow such adoptions.  “This indicates,” said the court, that the Adoption Convention “does not mean that States are free to treat heterosexual and same-sex couples who live in a stable relationship differently.”  However, since Austria has not ratified that Convention, the court’s discussion of its provisions is not directly relevant to this decision.

“The Court is aware that striking a balance between the protection of the family in the traditional sense and the Convention rights of sexual minorities is in the nature of things a difficult and delicate exercise, which may require the State to reconcile conflicting views and interests perceived by the parties concerned as being in fundamental opposition.  However, having regard to the considerations set out above, the Court finds that the Government have failed to adduce particularly weighty and 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 is therefore incompatible with the Convention.”

The court took pains to note that it was NOT deciding that the Convention requires signatory countries to allow second-parent adoptions.  Because this is an equality holding and the Court has not yet found that same-sex couples have an equal right to marriage, member States may still maintain distinctions between married and unmarried couples, including in the area of adoption.  However, if a member State allows second-parent adoption for unmarried couples, it must treat them without distinction based on sexual orientation or the sex of the members of the couple.  Thus the decision is significant for rejecting Austria’s argument that assuring that a child not have two parents of the same sex is a legitimate basis for discriminating based on sexual orientation, and it clearly rejects the contention that same-sex couples are categorically less suitable to raise children than different-sex couples.

The Court made a small damage award to the applicants (EUR 10,000) for non-economic injuries, and awarded costs in the amount of EUR 28,420.88.  The applicants are represented by Dr. Helmut Graupner, a Vienna attorney who heads the leading gay legal advocacy group in Austria and who has argued frequently before the European Court.  The case attracted several amicus briefs.  Prof. Rob Wintemute of King’s College London filed a brief on behalf of six pro-gay non-governmental organizations, including ILGA-Europe, which were granted intervenor status by the court.  Amnesty International also filed a brief in support of the applicants. 

Opposing the applicants were the right-wing European Centre for Law and Justice, the Attorney General of Northern Ireland, and Alliance Defending Freedom (formerly known as the Alliance Defense Fund), a U.S. right-wing litigation group that routinely opposes gay rights at every available opportunity.  ADF’s amicus brief relied upon the usual discredited studies intended to support the claim that in light of “the inconclusive findings of the scientific research and the wide margin of aprpeciation States enjoy in the area of family law, it was justified in the interest of the child to reserve adoption, including second-parent adoption, to heterosexual couples.”  Research on this topic is only “inconclusive” if one credits such studies, which the court was not inclined to do, having found, as the Austrian government conceded, that same-sex couples could be suitable parents.

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