Austrian couple wins landmark adoption case
by Heather Cassell
The European Court for Human Rights this week ruled in favor of an unnamed Austrian lesbian couple seeking to have a second-parent adoption for their son.
The case, X and Others v. Austria , could change Europe's adoption legal landscape for LGBT and straight couples.
The eight judges of the Grand Chamber ruled February 19 that it was unconstitutional for Austria to allow unmarried straight couples to adopt and not extend the same rights to same-sex couples.
The lesbian couple is only identified in court documents as both being born in 1967. The son of one of the women was born in 1995. The two women and the boy live together.
The jury found that there was no reason to believe that the couple and their son weren't a family and found no evidence of harm to the child for having same-sex parents.
The court's ruling didn't oblige other member states to extend the right of second-parent adoption to unmarried couples.
A similar case in France, Gas and Dubois v. France , was unsuccessful. In that country, unmarried LGBT and straight couples are barred from second-parent adoption, according to experts.
Ten other Council of Europe member states allow second-parent adoption for unmarried couples. Six of them allow it for same-sex and opposite-sex couples – Belgium, Iceland, the Netherlands, Slovenia, Spain, and the United Kingdom – and four allow it only for unmarried heterosexual couples – Portugal, Romania, Russia, and Ukraine, according to Amnesty International's February 19 news release in response to the court's ruling in the Austrian case.
In the court's ruling, which is final, it ordered Austria not only to comply by revising the country's adoption laws, but also ordered the country to pay the lesbian couple $13,400 in damages and more than $37,000 in court costs and expenses.
"This is a very significant and important victory for rainbow families in Europe," said Martin K.I. Christensen, co-chair of IGLA-Europe, the European region of the International Lesbian, Gay, Bisexual, Transgender, and Intersex Association. "We hope the judgment will pave the way toward the removal of the remaining legal barriers for these families in Europe."
John Dalhuisen, Amnesty International's director for Europe and Central Asia, agreed.
"This welcome decision must prompt the Austrian government to shake up its thinking and its laws," Dalhuisen said.
The lesbian couple brought the case in 2005, waging an eight-year legal battle. The Austrian court turned down their initial complaint because "adoption in this case was considered 'legally impossible,'" according to media reports.
The couple tried again in 2007 by submitting their complaint to the European Court for Human Rights. The couple charged Austria with discrimination under Article 14, prohibition of discrimination, which was taken in conjunction with Article 8, the right to respect for private and family life, and that they were being discriminated against for being a lesbian family when unmarried heterosexual couples were allowed to adopt and raise children together.
Legal representatives of Austria's government argued that the country's laws were designed to protect the traditional family unit and that there wasn't a European consensus on the issue of second-parent adoption by same-sex couples.
The majority of the court ruled that "there is not just one way or one choice when it comes to leading one's family or private life," and stated that the Austrian government failed to provide any evidence or even successfully argue against LGBT couples' capability to care and provide for a child's needs.
"Everyone has the right to marry and found a family. Some European governments need to wake up to the fact that lesbians, gays, bisexuals, transgender and intersex people should not be prevented from marrying and adopting, and that the march of law in Europe is inevitably on the side of social progress," said Dalhuisen.
Got international LGBT news tips? Call or send them to Heather Cassell at 00+1-415-221-3541, Skype: heather.cassell, or .