If the woman had been a man…

Comments on the ECHR ruling on homosexual adoption

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Here is a commentary from Grégor Puppinck, PhD, director of the European Centre for Law and Justice, regarding Tuesday’s ruling from the European Court of Human Rights on a homosexual adoption case.

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The Court sets out the principle that the adoption of the children of the same-sex partner must be possible, as it is for heterosexual couples, risking the exclusion of the biological parent. The reasoning may be thus summarised: If the woman had been a man, the adoption would have been possible, so it must be possible in the name of non-discrimination according to sexual orientation while the woman is not a man.

On the 19thof February, in a 50 pages judgment, the Grand Chamber of the European Court of Human Rights (ECHR) published a judgment against Austria in the case of X &others v. Austria (no. 19010/07) calling into question the impossibility of a woman adopting a child that was born to her partner in a previous relationship with a man (what the Court refers to as “co-parental adoption”). This decision established the principle that the adoption of the children of the same-sex partner should be possible, as it is for heterosexual couples.

The two women (unmarried) 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.)

A slight majority among the judges (10 out of 17) adopted the reasoning of the LGBT organisations that supported this case (ILGA, ECSOL, FIDH, etc.). In contrast, the dissenting opinion published in the appendix of the seven dissenting judges cited and largely reflects the written comments submitted by the ECLJ to the Grand Chamber.

According to Austrian law, such an adoption is not possible as a child can not have parentage divided between more than two parents (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 para 2 of the Austrian Civil Code). Thus, the adoption by a woman breaks the 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, if it is considered to be in the best interests of the child, the renunciation by the parent of their parental rights with the child or a court decision declaring the unworthiness of the biological parent to maintain his rights (in the case of total neglect or abuse of the child). In this case, the father assumes his responsibilities perfectly, he has regular contact with his son who bears his name, and he also pays alimony. In other words, like many others, the child lives with a mother and father whom he continues to see and who take care of him.

But the mother and her new partner want to deny the father his parental rights in order to found a new family. In order to allow the mother’s partner to establish parental rights over the child, the two women asked the father to give up his rights. When he refused, they asked the Austrian courts to deprive him of his rights and authorise the adoption so that the female partner of the mother may take the father’s place. After examination of the case, the Austrian authorities found the application contrary to the best interests of the child and refused. The two women proceeded to take their case before the European Court alleging discrimination.

Thus, from the point of view of the interests of the child, the matter was simple: the child already had a father and mother, and neither of whom wished to or intend to give up their parental rights, the interests of the child were to keep a legal family relationship with his both parents. The child is thus, not adoptable.

However, from the point of view of the adults, the case was more complicated as it is not the interests of the child that were being considered, but instead, equality between heterosexual and homosexual couples. It related to having the equal rights over children. The difference in situation between heterosexual and homosexual couples in their inability to “have” children was perceived as an inequality, discrimination.

A case of adoption considered only from the perspective of the rights of adults

It is only from the perspective of the rights of adults in adoption and only in light of equality that the majority of judges ruled. The majority ignored the specific circumstances of the case and focused on the law, considering that “as Article 182 § 2 of the Civil Code contains an absolute prohibition on second-parent adoption in a same-sex couple, making any examination of the specific circumstances of their case unnecessary and irrelevant and leading to the refusal of their adoption request as a matter of principle” (para.125) The Grand Chamber held that this absolute prohibition had prevented the national courts from considering whether the best interests of the child would be met by the adoption by the mother’s partner and had prevented examining “whether there were any reasons which might justify overriding the father’s refusal to consent (para 124).  However the factual evidence stands to the contrary: the Austrian courts were not limited to recall that Article 182 para 2 of the Austrian Civil Code prohibits the adoption by a woman of the child of their partner, they also considered that, having regard to the particular circumstances of the case, such an adoption would not be in the best interests of the child. However, this reproach can be turned against the Grand Chamber; it abstained to appreciate in concreto not only the interests of the child but also the interests of the father. The father did not participate in the proceedings at the European Court; perhaps he was not aware of the case as the applicants were granted anonymity. The son also was not present before the Court either: being a minor, his mother acted in his name before the Court.

A case considered in abstracto through the prism of equality

The majority of judges limited their analysis on the general principles. They 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 was a man, it would not have been impossible for him to become an adoptive father.[i] For the Court, this establishes the existence of a difference in treatment based on the sexual orientation of the two women (para 130).

If one considers, as found by the majority, that neither the sexual otherness nor the biological parentage is crucial to be “the parent” of the child; then there is discrimination. This is what the Court established by evaluating and eliminating one by the one the justifications provided by the government in support of its legislation:

–       the Court criticised the Government for having 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.” (para 142).

–       the Court criticised the Austrian law to “la
ck coherence
” in that it explicitly states that a child should not have two mothers or two fathersbut allows adoption by a single person, even if this person is a homosexual and lives as a couple (para 144). It is difficult to detect the inconsistency. 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.

–       The Court then disregards the Austrian law, 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” (para143). For the Court, the provision contested before it would therefore not really be Austrian “law”, but only the “position” of a conservative “sector of society”… Where is the respect which the Court held 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 conception of rights.

–       The Court finally dismissed, without any serious explanation, the observation of the government in relation to which it noted the lack of consensus in Europe about homosexual adoption (paras 147 – 150). Once again, the teleological use of the notion of consensus proves 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, it cannot be excluded that it may be in the best interests of the child to allow the mother’s partner to replace the father; this issue should be resolved in court. This conclusion applies to all 47 States parties to the Convention: to not allow homosexual adoption, it must be proven that it is harmful to the child. But is it still possible in Europe to argue that having two mothers and two fathers is harmful? There is reason to doubt as it implies a negative judgment on homosexuality, which is widely prohibited in Europe.

Finally, Austria has been condemned as it does not provide for a child to have two fathers or two mothers, while it may have a father and a mother, as it is on this point that it is impossible to adopt a child with a same-sex partner.

The law prevails over reality

The main problem in this case is how the majority of judges deal with reality. They disregard the natural difference between a man and a woman, and the reality of the family and of the children. Everything is analysed in light of equality between heterosexual and homosexual sentiments. The physical sexual difference between a heterosexual and a homosexual couple is wrongly reduced to a simple difference in sexual “orientation”; therefore, if the principle of non-discrimination depends on sexual orientation it would bring with it a prohibition on making distinctions according to the sexual identity of parents. But, on the subject of filiations, it is the physical sexual identity of the parents which matters, and not their orientation.

Reality always precedes law: law is modelled on reality and on human relationships. If one distorts the understanding of reality, all of law becomes altered. Thus, the legal system for adoption is “made to fit” the natural family. The claimants complain of not being able to fulfil the requirements of this legal system, and they claim that this material impossibility constitutes a legal interdiction. The “interdiction” appears when the “reality”, which the legislation is based on disappears.

Judges chose to allow law prevail over reality; law gets mistaken for the ideology that supports it and that it serves ultimately. Currently, it is a mix of ultra-liberal and neo-marxist ideology which is opposed to all rules imposed by morality and by the reference to nature. In our time, as in Soviet times, when law is highly influenced by ideology, ideology tends to use laws in order to remodel reality according to its own principles.

In this case, the majority of the judges translated into law the ultra-liberal ideology of deregulation which states that nothing should in principle be banned, because in morality, nothing would be completely unprovable, every question would be considered case by case, so everything would be relative. As a result, all impossibilities or interdictions must be disputable in court, and in fine, before the European Court of Human Rights. Thus the Court recently condemned Germany for banning in an absolute manner assisted suicide, i.e. euthanasia (Koch v Germany, (No 497/09), 19 July 2012). It is evident that this removes from human rights all of its substance which flows from the very idea of being human, and transforms it into a tool which liberates human behaviour, making it totally amoral and ultimately substituting morality by ideology.

A ruling with far reaching consequences

It is difficult to measure the extent of the potential consequences of this case. 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” (para 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. It is difficult to know what a “parent” is once the biological filiation, i.e. the reality is no longer the major reference of the social and legal filiation.

In addition, by affirming that is not harmful for a child to have two mothers or two fathers, the Court universally 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.

To adopt the Court’s decision, Austria could legislate to allow children have more than two parents at the same time (nothing is impossible in law when it prevails over reality). Austria could also adopt a special law declaring – also fictiousciosly – that a child can have two mothers or two fathers. In that case, the two claimant women could make the father appear in Court and attempt to deprive him of his parental rights. The father would then have to prove to the judge that he is a better “parent” for his son than his ex-wife’s new companion, even if he no longer lives with him…

In these two cases, the adoption of this decision would result in the child’s biological reality being in the hands of the adults, the legal fiction which establishes this new filiation is nothing but a lie to the child. We must be conscious that this case will not change anything in the daily life of the two claimant women. But this decision profoundly disrupts family law in all of Europe, something which was its only objective.

International law

It is doubtful whether this decision complies with international law, in particular because, as many international texts state, it is in the child’s best interest to keep its father and its mother[ii]  and the father has the right and the duty to continue to look after his child[iii]. To allow artificial filiations is a serious threat to the rights of the child, as well as 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” (article 7) and the right “to preserve his or her identity, including nationality, name and family relations” (article 8).

It is also doubtful that it complies with international law since it extends the State’s obligations much further than they sovereignly consented to when ratifying the European Convention on Human Rights. Moreover, one can presume that the new obligation established through this case goes aga
inst the will of a large proportion of the 47 states parties to the Convention where it is supposed to apply, particularly against the will of Portugal, Romania, Russia and Ukraine which explicitly prohibit the possibility of “co-parental” adoption by a same-sex partner. These states can, like the ten judges did, retort that this case “does nothing but “merely reflects the position of those sectors of the [Court] which are [favorable] to the idea of opening up second-parent adoption to same-sex couples” (para143); this shows how dangerous it is for a Court to disregard the legitimate law, and the rule of law.

A ruling weakening the Court and human rights

More generally, what can be the impact of this case when not less than seven judges expressed a dissenting opinion, two vice-presidents out of the 17 in the Grand Chamber, (judges Casadevall, Ziemele, Kovler, Jociene, Sikuta, De Gaetano and Sicilianos)? And out of the 10 judges in the majority, how many of them preferred to follow the LBGT political correctness rather than considering seriously the case? In a case on this ideological point which is so far removed from the original content of the Convention, the Court should have chosen the wisdom of law instead of the audacity of ideology. Despite its internal division, the tiny majority of judges chose instead to take “a forceful step” to impose its choice with the risk of weakening the Court and human rights.

There is no doubt that opponents of the Court will see this decision as a new reason to rejoice. The Court is internally divided and externally weakened within the public opinion of the 47 member states, many of which will be shocked by this case and by the ideological orientation which it manifests.

The Court has adopted an enthusiastic logic for some people, for others it is worrying one. Depending on one’s degree of attachment to human reality, they will see this ruling audacity or irrationality.

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Documents of reference:

Grand Chamber judgment

Written observations from the ECLJ for the case X and Ors v Austria (no. 19010/07) (only available in French)

ECLJ, Synoptic analysis of the case X and Others v Austria (no. 1901/07)

Video of the hearing from 3/10/2012 

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

The ECLJ engages legal, legislative, and cultural issues by implementing an effective strategy of advocacy, education, and litigation. 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, the Organization for Security and Cooperation in Europe (OSCE), and others. 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).


[i]Had the first and third applicants been an unmarried different-sex couple, the domestic courts would not have been able to refuse the adoption request as a matter of principle. Instead, the courts would have been required to examine whether the adoption served the second applicant’s interests within the meaning of Article 180a of the Civil Code. If the child’s father had not consented to the adoption, the courts would have had toexamine whether there were exceptional circumstances such as to justify overriding his refusal under Article 181 § 3 of the Civil Code. (para 125.)

[ii] Convention on Protection of Children and Co-operation in respect of Inter-country Adoption (art. 1) and the Convention on the Rights of the Child (art. 9 and 21)

[iii] Convention on the Rights of the Child (art. 5) and the European Convention on the Legal Status of Children Born out of Wedlock (art. 6)  

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Grégor Puppinck

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