Lesbian Couple Challenges Joint Adoption Ban in Constitutional Court Rechtskomitee LAMBDA (RKL): „Ban violates best interests of the child
11.06.2014 | Austria
As part of the current litigation offensive by Rechtskomitee LAMBDA (RKL), Austria´s LGBT-rights organisation, a lesbian couple from the state of Upper Austria applied to the Constitutional Court to strike down Austria´s ban on joint adoption by same-sex couples.
The two women have been a couple for over 15 years and have registered their partnership immediately after Austria introduced registered partnerships back in 2010. The couple is living a harmonious family live with the biological daughter of one the women, which the other woman has adopted last year with the effect that both women now both are legal mothers of the child. The two women wish their daughter a little brother or sister and would like to become caring parents for a child in need of adoption (from Austria or abroad). They are looking very much forward to their second child and to living a happy family life with their first child and adoptive child. This however Austria is banned by law.
Applicants already joint mothers of a child
While the qualification of spouses to adopt a child is decided case by case by a court, registered same-sex couples are excluded generally from the outset and the courts are banned from deciding, what is the best for a concrete child in a concrete case.
In a registered partnership both partners are entitled to adopt a child by individual adoption. Such a child thus, with state sanction, gets raised in a rainbow-family. It however – different then biological children of one of the partners - may not be adopted by the other partner. Therefore the child is barred from maintenance-, inheritance-, custody- and other rights vis a vis its step-parent. Children adopted into same-sex registered partnerships thus are discriminated against compared to children adopted into opposite- sex marriages, solely on the basis of the gender and the sexual orientation of their parents.
Also international adoptions banned
Opponents of joint adoption by same-sex couples argue that in Austria there are fewer children waiting for adoption then couples willing to adopt so that only opposite-sex couples should be admitted to adoption. This argument can however not in any way justify to withdraw (solely on the basis of gender and sexual orientation) from the courts the power to decide each case on its merits, whether an adoption is in the best interests of a concrete child. If same-sex couples be substituted by couples of another religion or ethnicity, the argument would get stuck in the throat …
On the other hand the law not only bans domestic adoptions but it also bars local governments from issuing a license for international adoptions under the The Hague Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption (1993). Many states in many parts of the world allow joint adoption by same-sex couples. Many children in these countries are waiting for caring adoptive-parents. Austrian law bans their adoption by Austrian same-sex registered couples.
Unique in Europe
The Austrian ban is unique in Europe. Among all 47 member-states of the Council of Europe only Finland and Slovenia has a comparable legal situation (registered partnership or civil marriage for same-sex couples and step-parent adoption but no joint adoption).
By its current litigation offensive Rechtskomitee LAMBDA (RKL), Austria´s LGBT-rights organisation, already has achieved numerous successes for same- sex couples. Thus it brought about the downfall of the hyphen-ban (VfGH 22.09.2011, B 518/11), successfully fought for the ability to acquire a double-name also after registering a partnership (VfGH 03.03.2012, G 131/11) and for the same ceremony as for marriage (VfGH 12.12.12, B 121/11, B 137/11) and it did away with the office-room-compulsion (VfGH 29.06.2012, G 18, 19/2012) and recently successfully challenged the ban on assisted medical procreation for lesbian couples (VfGH 10.12.2013, G 16/2013, G 44/2013).
„The ban on joint adoption discriminates against same-sex couples as well as against the adopted children“, says Dr. Helmut Graupner, president of RKL and counsel of the couple, „Their discrimination endangers their best interests, as they have the same right to secure stability and protection by establishing legal bonds with their step-parents as children adopted into marriages have“.