Wednesday, October 3, 2012

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

Earlier this year, the European Court of Human Rights ruled against a lesbian couple's claim that France's refusal to allow second-parent adoption violates the European Convention on Human Rights.  I wrote about that case, Gas and Dubois v. France, in an earlier post.  Today, the ECHR heard another case, X. and others v. Austria, but this case raises a different issue.  France did not allow adoption by any unmarried partner of the birth mother.  Austria, on the other hand, allows a mother's unmarried different-sex partner to adopt, but does not allow a mother's same-sex partner to adopt.  Thus this case is explicitly about the distinction based on sexual orientation.  In Gas and Dubois, the ECHR ruled that the case was not about sexual orientation.  (That doesn't make it better in my opinion, as every adoption is examined to be certain that it serves the child's best interests and that analysis can be done for unmarried as well as married couples.)

The webcast of the case argued today is available in English here.  The lawyer representing Austria stated that Austrian law is based on the principle that the child has one father and one mother.  She argued that adoption law is based on this principle as well because adoption attempts to recreate the circumstances of the biological family.  She also asserted that sexual orientation was irrelevant, although that seems patently ridiculous since she explicitly said Austria did not want a child to have two mothers or two fathers.  (Austria passed a statute in 2010 forbidding adoption by same-sex couples, but that law is not at issue in this case, which was decided under prior law.  That statute sure does show the position of the Austrian government, however.)

The couple is represented by Helmut Graupner, an Austrian attorney who is a leading European gay rights advocate.  He pointed out that only four European countries allow an unmarried different-sex partner to adopt but not a same-sex partner.  Forty-two countries, on the other hand, either allow only a married partner to adopt or allow both different- and same-sex unmarried partners to adopt.  Graupner argued directly that children of same-sex couples are not disadvantaged when compared to children of different-sex couples, and he listed all the child welfare professional associations who support adoption by same-sex couples.  He also referred to all the ECHR law against discrimination based on sexual orientation, and the Inter-American Court of Human Rights ruling in Atala (which I covered in this post and which is the strongest ruling in favor of lesbian and gay parents under international human rights law.)

Intervenors supporting Austria provided the Regnerus study for their position against allowing adoption by same-sex couples, which Graupner refuted by noting, as everyone has done by now, that the study compared children of intact married heterosexuals with children whose parent had ever had a same-sex relationship, not with children who had lived for a long period with a stable same-sex couple.  (For an example of a typical rebuttal to Regnerus, see this friend of the court brief filed in one of the DOMA cases.)

The child in this case has been raised by the mother and her partner for thirteen years (the case started when he was nine; he is now seventeen.) The child does have a biological father who did not consent to a second-parent adoption. The lawyer for Austria stressed this, but Graupner noted that there is a legal process and standard for overcoming the father's objection, and that process and standard would have been applied had the mother's partner been male, but it was not available to her female partner.  The lower courts explicitly ruled against the couple based on the mother's partner's legal inability to adopt, something one of the courts approved based on the child's need for attachment to one male and one female parent. So no court ever ruled on whether the father's refusal was justified or should be overcome.


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