Had the woman been a man… Comments on the ECHR ruling of X and others v. Austria on homosexual adoption and the abandonment of natural law.

By Grégor Puppinck, Ph.D | February 26, 2013

Director of the ECLJ.

The Court establishes that the impossibility of second-parent adoption in a same-sex relationship is discriminatory when such adoption is possible for unmarried heterosexual couples, although 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 19th of February, in a 50 page judgment, the Grand Chamber of the European Court of Human Rights (ECHR) ruled against Austria in the case of X and 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 children by same-sex partners should be possible, as it is for heterosexual unmarried couples.                                      

The two (unmarried) women 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 of the judges (10 out of 17) adopted the reasoning of the LGBT organisations that supported this case (ILGA, ECSOL, FIDH, etc.). In contrast, the 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 because a child cannot have parentage divided between more than two parents who have to be 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 would break 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 the renunciation by the parent of their parental rights or a court decision declaring the unworthiness of the parent to maintain his rights, if it is considered to be in the best interests of the child.

However, the mother and her new partner wanted to exclude the father in order to “found” a new family. In order for the mother’s partner to be allowed to establish parental rights, the two women asked the father to give up his own parental rights. The father refused; in fact, he maintains regular contact with his son, who bears his name and he also pays alimony. The women asked the Austrian courts to deprive the father of his rights so that the female partner could take his place as the second parent. After examining the case, the Austrian authorities found the application contrary to the best interests of the child and refused. The two women then proceeded to take their case to the European Court.

Thus, from the point of view of the interests of the child, the matter was simple: the child already had a father and mother, neither of whom wish to nor should have to give up their parental rights, the interests of the child were to keep a legal family ties 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 concerned equal rights over children. The difference in situation between heterosexual and homosexual couples in their inability to “have” children was perceived as discriminatory.

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 para 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 126) 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 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 could be used against the Grand Chamber; since it abstained from appreciating, in concreto, the interests of the child and of the father. The father did not participate in the proceedings at theEuropean 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 of the general principles. They asked in abstracto whether the adoption would have been possible if the applicants were not of the same sex. The Court thus, found that if the mother’s partner had been a man, it would have been possible for him to become an adoptive father.

“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.” (para 125.)

For the Court, this establishes the existence of a difference in treatment based on the sexual orientationof the two women (para 130). This finding necessitates assimilating the physical sexual difference between a heterosexual and a homosexual couple to a difference in sexual “orientation”. But, on the subject of filiations, it is the physical sexual identity of the parents which matters, and not their orientation. 

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. The majority then evaluated and eliminated one by the one the justifications provided by the government in support of its legislation:

  • the Court notes that the Government has 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” (§ 142).
  • The Court then disregards the Austrian law itself, 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” (§ 143). Where is the minimum respect which the Court, in a European legal system based on the rule of law, is supposed to hold 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 enlightened conception of rights.
  • the Court criticises the Austrian law to “lack coherence” in that it explicitly states that a child should not have two mothers or two fathers but allows adoption by a single person, even if this person is a homosexual and lives as a couple (§ 144). 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 (Fretté v France; E.B. v France).
  • The Court finally dismisses the observation of the government regarding the obvious lack of consensus inEuropeon homosexual adoption (§147 – 150): the teleological use of the notion of consensus proving here again 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 inEurope to argue that having two mothers and two fathers is harmful? This is doubtful as it implies a negative judgment on homosexuality, which is widely prohibited inEurope.

Finally,Austria has been condemned as it does not make legally possible for a child to have two fathers or two mothers, while itmay have a fatherand a mother.

The abandonment of natural law

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. Nevertheless, 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 argue that this material impossibility constitutes a legal interdiction. The “interdiction” appears when the “reality”, on which the legislation is based disappears.

Judges choose to allow law to prevail over reality: The ideology underpinning this ruling is not new within the ECHR; it is a mixof positivism and historicism which consider firstly that the law (the human will) prevails over reality (positivism): this allows a child to have more than two parents or two parents of the same sex, which is impossible in the real world. Secondly, this ideology refutes that rules steaming from morality and the reference to nature may be “in themselves sufficient reasons for a complete ban” (S. H. v Austria I §74); from this steams the liberal doxa of deregulation which supports that nothing should be prohibited as an absolute manner, because in morality no truth could be provable, every situation would be culturally relative (historicism). As a result, all impossibilities or interdictions should be disputable in courts. Thus, the Court recently condemned Germany for banning in an absolute manner euthanasia without offering the possibility to asses in Court the legitimacy of the demand in case (Koch v Germany).

This clearly removes from human rights all of its substance which flows from the very idea of being human, and transformsit into a toolwhich liberates human behaviour, making it totally amoral and ultimately substituting morality for ideology. It is the abandonment of natural law.

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 execute the Court’s decision, Austria could legislate to allow children have to 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 fictitiously – 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 partner, even if he no longer lives with his child…

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 ofEurope, 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[1] and the father has the right and the duty to continue to look after his child[2]. 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 against 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, Russiaand Ukrainewhich 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” (para 143); this shows how dangerous it is for a Court to disregard the legitimate law, and the rule of law.

A ruling which weakens the Court and human rights 

More generally, what can be the impact of this case when no less than seven judges expressed a dissenting opinion, two vice-presidents out of the17 inthe 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 seriously considering 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 its prestige and authority are weakened among the public opinion of the 47 member states. 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 in this ruling audacity or irrationality.

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Documents of reference:

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).

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