In X and Others v. Austria, ECtHR Finds Discriminatory Restriction on Same-Sex Couple Adoption Violates Convention

This week, the European Court of Human Rights announced the Grand Chamber’s judgment in X and Others v. Austria [GC], app. no. 19010/07, Judgment of 19 February 2013, in which the court considered whether a restriction on a lesbian woman’s ability to adopt her partner’s child violated the European Convention on Human Rights.  In finding a violation of  Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life), the ECtHR’s ruling affirmed the prohibition of discrimination on the grounds of sexual orientation, while confirming its understanding that the Convention does not per se require States to legally recognize same-sex marriage or extend family-related rights to lesbian and gay individuals (where not provided to similarly situated heterosexual individuals or couples).  The Grand Chamber’s finding of discrimination was based on the fact that, while Austria allowed unwed heterosexual couples the right to adopt, it effectively prohibited adoption by unmarried same-sex couples. Austria does not currently recognize same-sex marriage, and its adoption law would require the biological parent to sever legal ties with the child before adoption by his or her same-sex partner would be authorized.

At the time of the Grand Chamber’s decision, the laws concerning adoption by a second same-sex parent remained varied throughout Europe.  Ten Council of Europe Member States allow adoption in such instances: Germany, Belgium, Denmark, Finland, Iceland, Norway, Netherlands, UK and Sweden. X and Others v. Austriapara. 55.  With the exception of Germany and Finland, these States also allow joint adoption by same-sex couples. Id.  Austria and France had both prohibited a second parent adoption. Id.  Thirty-five States do not have access to the joint adoption and adoption by the second parent: Albania, Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Estonia,  the former Yugoslav Republic Yugoslav Republic of Macedonia, the Russian Federation, Georgia, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, Poland, Portugal, Czech Republic, Romania, San Marino, Serbia, Slovakia, Slovenia, Switzerland, Turkey and Ukraine. Id.  This week, the German Federal Constitutional Court struck down a ban on what is termed “successive adoption” by same-sex couples in registered civil unions, paving the way for legal recognition of an individual’s right to also adopt his or her same-sex partner’s adopted child. [DW] The French legislature is currently considering legislation to extend marriage and adoption rights to same-sex couples. [BBC]

Procedural History

The three applicants in this case were the child, his biological mother, and his mother’s female partner, all of whom had lived in the same household and functioned as a family unit for several years. Because custody of the child was awarded to his mother at an early age, the mother’s partner played a crucial role in raising and caring for the son. Wishing to create a legal relationship between the child and his mother’s partner without severing the relationship with his mother, both partners submitted an adoption agreement in February 2005 to their local district court for approval.  The district court denied the application and the applicants’ appeals were dismissed by both the Regional Court and Supreme Court.

While the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) does not contain provisions specific to adoption by same-sex couples, the Austrian courts interpreted it to exclude adoption of one partner’s biological child by the other partner in a same-sex couple. Austrian law allows adoption whether or not the adoptive parent is married to the biological parent.  However, under domestic law, “[t]he mother shall be the woman who has given birth to the child” and the father is the man who “1.  who is married to the child’s mother at the time of the child’s birth or, being the mother’s husband, died no earlier than three hundred days prior to the child’s birth, or 2.  who has recognised paternity, or 3.  whose paternity has been established by a court.” ABG, arts. 137(b), 138(1).  Article 182(2) of the Civil Code, which governs the effects of adoption, provides that if the child is adopted by an adoptive mother (or father), the child’s legal relationship with his biological mother (or father) and her relatives “shall cease.” For a lesbian couple, this means the biological mother’s relationship would be severed, and her partner would transform into the child’s new mother by way of adoption.  

The applicants requested the Austrian Constitutional Court to declare portions of the Civil Code unconstitutional, as it had a discriminatory impact 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 October 2005, the district court refused to approve the adoption agreement, holding that the Civil Code made it impossible to do so. The Constitutional Court ruled that the child’s adoption by his mother’s partner would sever his relationship with his mother, not with his father. The applicants’ appeal was dismissed by the Regional Court in February 2006.

In September 2006, the Austrian Supreme Court dismissed the applicants’ appeal on points of law, holding that the adoption of a child by the female partner of his or her mother was legally impossible, and that the relevant provision of the Civil Code did not contravene the Austrian constitution or the holdings of the European Court of Human Rights. The Supreme Court highlighted wide margin of appreciation States enjoy in framing their adoption laws so as to further the best interests of the child, pursuant to the European Court’s jurisprudence.  The court also noted, “Article 182 § 2 of the Civil Code imposes a general prohibition (that is, not just in the case of same-sex partners) on adoption by a man as long as the ties of kinship with the child’s biological father still exist, and by a woman where such ties still exist with the biological mother.”

Both the Regional Court and Supreme Court endorsed the view that children are better off when raised by a female parent and a male parent, as opposed to two parents of the same sex. The Supreme Court’s reasoning implied that it found the Civil Code’s prohibition on adoption by a second same-sex couple pursued the legitimate aim of protecting the child’s best interests, in that:

Adoption should constitute an appropriate means of entrusting to suitable and responsible individuals the care and upbringing of children who have no parents, those who come from broken homes or those whose parents, for whatever reason, are unable to provide their children with a proper upbringing or may not even want their children. However, this aim can be achieved only when the adoption allows the situation in a biological family to be recreated as far as possible.

The applicants lodged their complaint with the ECtHR in April 2007. On June 5, 2012, the ECtHR Chamber to which the case had been allocated relinquished jurisdiction in favor of the Grand Chamber, who heard the case on October 3, 2012.  A Chamber may relinquish a case to the Grand Chamber if it “raises a serious question affecting the interpretation of the Convention” or if there is a risk of inconsistency with a previous judgment of the Court according to Article 30 of the European Convention on Human Rights.  An explanatory report on the relinquishment notes that a serious question affecting the interpretation of the Convention is raised when a question of importance not yet decided by the Court is at stake, or when the decision is of importance for future cases and for the development of the Court’s case law. Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinary established thereby, para. 100.

ECtHR’s Analysis and Holding

The Grand Chamber held that Austria was responsible for a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the Convention on account of the difference in treatment of the applicants in comparison with unmarried heterosexual couples in which one partner wished to adopt the other partner’s child.

The European Court concluded that Article 8 applied to the facts of the case, “reiterat[ing] that the relationship of a cohabiting same-sex couple living in a stable de facto relationship falls within the notion of ‘family life’ just as the relationship of a different-sex couple in the same situation would,” as it had also determined with regard to the relationship between two women in a civil partnership raising a child conceived by one of them. X and Others v. Austria, para. 95, citing Schalk and Kopf v. Austria, para. 94; Gas and Dubois v. France (dec.)no. 25951/07, 31 August 2010.

The European Court has repeatedly held that Article 14’s prohibition on discrimination extends to difference in treatment on the basis of sexual orientation. See X and Others v. Austria, para. 92 and cases cited therein.  Accordingly, “just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification or, as is sometimes said, particularly convincing and weighty reasons” and “differences motivated solely by considerations of sexual orientation are unacceptable under the Convention.” Id. at para. 99.

On the facts of this case, the court found that Austria’s different treatment of same-sex couples, in comparison to other unwed couples, amounted to a violation of Article 8 taken in conjunction with Article 14.  The court described the difference in treatment as follows:

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 to examine whether there were exceptional circumstances such as to justify overriding his refusal under Article 181 § 3 of the Civil Code.

Id. at para. 125.  The Court proceded to define the scope of the question before it, noting:

In the context of the present case the Court notes that there is no obligation under Article 8 of the Convention to extend the right to second‑parent adoption to unmarried couples. Nonetheless, Austrian law allows second-parent adoption in unmarried different-sex couples. The Court therefore has to examine whether refusing that right to (unmarried) same-sex couples serves a legitimate aim and is proportionate to that aim.

Id. at para. 136 (internal citations omitted).

Importantly, the court found that the Austrian adoption law’s purpose of “recreating the circumstances of a biological family” was a legitimate aim.  Id. at para. 138.  However, as to proportionality, the Court found the Austrian legislation lacked coherence because single, homosexual individuals could legally adopt, children could lawfully be raised by same-sex couples, and the government had acknowledged that such families could meet a child’s needs. Id. at para. 144.  In contrast, the court stressed the importance of granting legal recognition to de facto families, and stated:

[these considerations] cast considerable doubt on the proportionality of the absolute prohibition on second-parent adoption in same-sex couples arising out of Article 182 § 2 of the Civil Code. 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 favour 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.

Id. at para. 146.  In concluding its analysis, the Court noted its awareness 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,” but found the government had failed to meet its burden of providing “particularly weighty and convincing reasons” to justify the discriminatory treatment. Id. at paras. 151-52.  The Grand Chamber therefore concluded there had been “a violation of Article 14 of the Convention taken in conjunction with Article 8 when the applicants’ situation is compared with that of an unmarried different-sex couple in which one partner wishes to adopt the other partner’s child.” Id. at para. 153.

The European Court’s Previous Holdings in Gay Adoption Rights Cases

The European Court’s previous rulings concerning adoption by gay individuals or same-sex couples demonstrate its evolution on this issue, and hint at where its jurisprudence may lead with regard to same-sex marriage, as States’ policies change and recognition increases of the de facto families referred to by the court.

In Fretté v. France, no. 36515/97, Judgment of 26 February 2002, French authorities rejected a man’s adoption application due to the fact that he was homosexual. The Court held that decisions taken by the domestic authorities pursued a legitimate aim: to protect the health and rights of children. The ECtHR noted that the scientific community was divided on the possible consequences of the receipt of a child by one or more homosexual parents, especially given the number limited scientific studies on the subject that were available at the time. The Court held that the national authorities had been legitimately and reasonably entitled to consider that the right to be able to adopt was limited by the interests of children eligible for adoption. Here, the Court found no violation of Article 14 in conjunction with Article 8.

However, in E.B. v. France, no. 43546/02, Judgment of 22 January 2008, the Court ruled that the French authorities’ refusal of a lesbian’s application to obtain authorization to adopt a child on the grounds of her sexual orientation was unlawful. The Court observed that the applicant’s homosexuality had been a determining factor in refusing her request, whereas French law allowed single persons to adopt a child, thus allowing the possibility of adoption by a single gay individual. The ECtHR found France in violation of Article 14 in conjunction with Article 8.

The court’s decision in Gas and Dubois v. France, no. 25951/07, Judgment of 15 March 2012, parallels X and Others v. Austria. In Gas and Dubois, the Court found that there was no difference of treatment based on sexual orientation between an unmarried opposite sex couple and an unmarried same-sex couple concerning adoption. Under French law, second parent adoption was only open to married couples. Unwed couples had no right to be adoptive parents. Since homosexuals were not allowed to marry, the Court considered the fact that a same-sex couple in which one partner wished to adopt the other partner’s child without severing the mother’s legal ties with the child was not in a relevantly similar situation to a married couple. However, the ECtHR found that the Convention did not impose an obligation on States to grant same-sex couples access to marriage, and ruled that there was no obligation under Article 8 to extend the right of second parent adoption to unmarried couples.

Contemporary rulings concerning gay adoption and child custody rights are not confined to the European human rights system. For example, last year the Inter-American Court of Human Rights held that a Chilean court’s denial of custody to a lesbian woman based on her sexual orientation violated, inter alia, her rights to respect for family life and non-discrimination. See I/A Court H.R., Atala Riffo and Daughters v. Chile. Merits, Reparations and Costs. Judgment of February 24, 2012. Series C No. 239, para. 221.  

For more information on past and pending decisions, see the Inter-American Commission on Human Rights’ Unit on the Rights of LGBTI Persons, the European Court of Human Rights’ Factsheet – Sexual Orientation Issues, and the United Nations Office of the High Commissioner for Human Rights’ page on Combating discrimination based on sexual orientation and gender identity.