On February 19, 2013, the Grand Chamber of the European Court of Human Rights issued an important judgment on sexual orientation discrimination pertaining to family life. The Court specifically addressed the issue of adoption of a child by a “second parent” in a same-sex relationship. In X. and Others v. Austria, the applicants were two Austrian women, living in a stable homosexual relationship and the biological son of one of the partners. The child was born in wedlock and his mother had sole custody of him. The couple’s complaint alleged that the refusal of the domestic Austria courts to allow of one the applicants to adopt the biological child of her partner constituted discrimination contrary to Articles 8 (respect for private and family life) and 14 (prohibition on discrimination) of the European Court of Human Rights. The Austrian Supreme Court stated that it was a “legal impossibility.”
Austrian law prevented same-sex couples from jointly adopting the biological child of one of them, which is called second-parent adoption. It only allowed registered partners to adopt as individuals. Second parent adoption was only available to married and unmarried opposite sex couples because of Article 182(2) of the Civil Code, which required second parent adoption to be formed within opposite-sex couples.
The Grand Chamber of the European Court of Human Rights held by a 10 to 7 vote that there was a violation of Article 14 taken in conjunction with Article 8 of the Convention.
The Court found that Austrian law discriminated against same-sex couples by preventing them from jointly adopting the biological child of one of the partners when an unmarried different sex couple would have been permitted to adopt together. The Court further held unanimously that there was no violation of Article 14 taken in conjunction with Article 8 where the applicants’ situation was compared with a married couple and child. The Austrian Government failed to show why such a prohibition was necessary for the protection of the traditional family.
I strongly agree with the Court’s judgment and believe it was the right decision. How do you feel about the judgment of the European Court of Human Justice? Did it get right? Is this a positive step towards ending discrimination against gay men and lesbians?