Tuesday, December 6, 2011

European Court of Human Rights (ECHR) hears another second-parent adoption case

Last week the European Court of Human Rights (ECHR) heard the case of  X. & Others v. Austria, its second case on the availability of second-parent adoption.  A webcast of the oral argument in the case -- translated into English -- is available on the ECHR website here. I wrote about the hearing in Gas & Dubois v. France last April; that case has yet to be decided.  In Gas & Dubois, the child was conceived through donor insemination and France denied the mother's partner the ability to become a second parent through adoption.  In X. & Others, the child was born in the context of a prior heterosexual relationship.

According to Rob Wintemute, leading European expert on LGBT family law, unmarried different-sex couples may adopt each other's children in Austria. If the child's birth mother had been living with a new unmarried male partner, instead of a female partner, the new male partner could apply to adopt the child. The genetic father would have to consent, or the court would have to be persuaded to override his refusal to consent because the step-parent adoption would be in the best interests of the child.  Because a step-parent adoption or second parent adoption is legally impossible for a same-sex couple in Austria, the trial court did not reach the question of the genetic father's consent.

The lawyer arguing for Austria pointed out to the ECHR that most European countries do not allow a child to have two mothers or two fathers.  She argued that this is relevant to the leeway given to each country (called the "margin of appreciation") in implementing the European Convention on Human Rights provisions on respect for family life.

The petitioners are represented by Helmut Graupner, leading Austrian gay rights attorney.  He noted that the Youth Welfare Office found that it would be in the child's best interest for the mother's partner to have legal custody of the child but that this was not permitted under the law.  Graupner quoted to the court the opinions of numerous experts on the well-being of children raised by same-sex couples.

Although Europe was way ahead of the US in recognizing same-sex couple relationships, beginning with registered partnership in Denmark in 1989 and same-sex marriage in the Netherlands in 2001, European countries have actually lagged behind the US in recognition of parentage for same-sex couples.  It is a relatively recent development that some countries do allow second-parent adoption or parentage for the same-sex partner of a woman who bears a child through donor insemination.  Austria not allows same-sex couples to enter registered partnerships, but the law explicitly bans second-parent adoption for registered partners.