02 February 2009

FIRST SECTION

Application no. 19010/07 by X AND OTHERS against Austria lodged on 24 April 2007

STATEMENT OF FACTS

THE FACTS

The applicants are Austrian nationals who were born in 1967 , 1995 and 1967 respectively . They are represented before the Court by Mr H. Graupner, a lawyer practising in Vienna .

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant and the third applicant are two women living in a stable relationship. The second applicant is the third applicant ’ s son. He was born out of wedlock and his mother has sole custody of him. The applicants live in a common household and the first and third applicants jointly care for the second applicant.

By agreement concluded on 17 February 2005, the first applicant adopted the third applicant ’ s son. The applicants ’ intention was to create a legal relationship between the first and the second applicant corresponding to the bond between them, without severing the relationship with his mother, the third applicant. As required by law, the applicants submitted the adoption agreement to the competent District Court for approval.

The applicants, being aware that the wording of Article 182 § 2 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) could be understood to exclude the adoption of the child of one partner of a homosexual couple by the other partner without severing the relationship with the natural parent, requested the Constitutional Court to declare that provision unconstitutional as discriminating against them on account of their sexual orientation.

They argued in particular that in respect of heterosexual couples Article 182 § 2 of the Civil Code allowed for stepchild adoption, i.e. the adoption by one partner of the other partner ’ s child, while the latter ’ s legal relationship with the child remained unaffected.

On 14 June 2005 the Constitutional Court rejected the request as being inadmissible. It noted that the District Court was called upon to examine the question whether or not Article 182 § 2 of the Civil Code allowed stepchild adoption in case of a homosexual couple. Should the District Court refuse to approve the adoption agreement the applicants remained free to submit their arguments regarding the alleged unconstitutionality of that provision to the appellate courts which in turn could bring the issue before the Constitutional Court if they shared the applicants ’ view.

Subsequently, the applicants requested the District Court to approve the adoption agreement with the effect that both the first and the third applicant would be the second applicant ’ s parents. The first applicant would thus replace the second applicant ’ s father. They noted that the second applicant ’ s father, who did not live in a common household with him, refused to agree with the adoption. However his consent would have to be replaced by the court ’ s consent as he had failed to give valid reasons and the adoption was in the best interests of the second applicant. In support of their submissions, the applicants attached a report from the Youth Welfare Office, which confirmed that the first and third applicants shared both the daily tasks concerning the care of the second applicant and the overall responsibility for his up-bringing and concluded that the award of joint custody would be desirable.

On 10 October 2005 the District Court refused to approve the adoption agreement, holding that Article 182 § 2 of the Civil Code did not provide for an adoption with the effect desired by the applicants.

It noted that the second applicant had been born out of wedlock and that his mother, the third applicant, had sole custody of him. The clear wording of Article 182 § 2, second sentence, of the Civil Code which had been in force since 1960, envisaged that in case of an adoption by one person that person replaced the natural parent of the same sex, thus severing the child ’ s relationship with that person. In the case at hand the second applicant ’ s adoption by the first applicant would sever his relationship with his mother but not with his father, as the applicants had requested. Referring to Fretté v. France , (no. 36515/97, ECHR 2002-I), the District Court found that States retained a broad margin of appreciation when regulating adoption by homosexuals. There was thus no indication that the law as it stood, which excluded that two persons of the same sex were a child ’ s parents, was unconstitutional.

The applicants appealed. Referring to Articles 8 and 14 of the Convention they argued that Article 182 § 2 of the Civil Code was discriminatory in that it led to an unjustified distinction between heterosexual and homosexual couples. So-called stepchild adoption was possible for heterosexual (married or unmarried) couples but not for homosexual couples. The present case had to be distinguished from Fretté which had dealt with adoption by a single person living in a homosexual relationship. In contrast the present case concerned a difference in treatment between heterosexual and homosexual couples. There was research to show that children developed equally well in families with homosexual parents than in families with heterosexual parents. What was important was not the parents ’ sexual orientation but their ability to provide a stable and caring family.

The Regional Court dismissed the applicants ’ appeal on 21 February 2006. In addition to the considerations of the District Court, it observed that Austrian law, though not containing a definition of the term “parents”, plainly envisaged two persons of different sex. Where, as in the present case, a child had both parents there was no need to replace one of them by an adoptive parent. In that connection, the Regional Court noted that the second applicant had regular contacts with his father. In general terms, for instance where heterosexual couples not living in a common household were concerned, it was in the interest of the child to have contacts with both of them. This consideration also militated against granting the adoption requested by the applicants with the effect of severing the second applicant ’ s relationship with this natural father.

Thus the difference in treatment which resulted from Article 182 § 2 of the Civil Code was not an unjustified one as in case of a stepchild adoption of one partner ’ s child by his or her heterosexual partner, the child still had two parents of different sex, while a stepchild adoption of one partner ’ s child by the homosexual partner would deprive that child of contacts with the parent of the other sex. In short the legislator pursued the legitimate aim of maintaining a child ’ s relationship with parents of both sexes. While the first and third applicants ’ choice of living in a homosexual relationship had to be respected, it did not provide a justification for obliging the second applicant to renounce any family law relationship with his natural father.

On 27 September 2006 the Supreme Court dismissed the applicants ’ appeal on point of law.

The Supreme Court observed that the primary aim of the provisions on adoption was to secure the well-being of the child. Adoption provided in the first place an opportunity to entrust suitable persons with the education and custody of orphans or of children whose parents were unable to take care of them. The aim was to put them in a situation coming as close as possible to the natural family.

Article 182 § 2 of the Civil Code did not disclose any appearance of being unconstitutional. In that connection the Supreme Court referred to Fretté v. France (cited above) in which the European Court of Human Rights had accepted that States enjoyed a wide margin of appreciation in this area having regard to the great variety of opinions regarding adoption by homosexuals.

The judgment was served on the applicants ’ counsel on 24 October 2006.

B. Relevant domestic law and practice

Article 182 § 2 second sentence of the Civil Code reads as follows:

“1. The same rights that arise as a consequence of legitimate descent shall be created at that time between the adoptive parent and his or her offspring, on the one hand, and the adopted child and his or her offspring who are minors at the time the adoption takes effect, on the other hand.

2. If the child is adopted by a married couple, the legal relationship under family law - above and beyond the blood relationship itself - between the biological parents and their relatives, on the one hand, and the adopted child and his or her offspring who are minors at the time the adoption takes effect, on the other hand, shall cease at that time ... If the child is adopted by just an adoptive father (an adoptive mother), the relationship shall cease only in respect of the biological father (the biological mother) and his (her) relatives; ... ”

As the Supreme Court ’ s judgment in the present case demonstrates, this provision is interpreted as excluding the adoption of one homosexual partner ’ s child by the other partner, without severing the relationship between the natural parent and the child.

COMPLAINT

The applicants complain under Article 14 of the Convention taken in conjunction with Article 8 that they are being discriminated against on account of their sexual orientation. They submit that there is no reasonable and objective justification for allowing adoption of one partner ’ s child by the other partner as far as heterosexual couples are concerned, while prohibiting the adoption of one partner ’ s child by the other partner in case of homosexual couples.

QUESTION TO THE PARTIES

Regarding the interpretation of Article 182 of the Civil Code by the courts, leading to the impossibility of step-child adoption for homosexual couples, have the applicants suffered discrimination on the ground of the first and third applicants ’ sexual orientation contrary to Article 14 of the Convention read in conjunction with Article 8?