Information Note on the Court’s case-law No. 160

February 2013

X and Others v. Austria [GC] - 19010/07

Judgment 19.2.2013 [GC]

Article 14

Discrimination

Impossibility of second-parent adoption in same-sex couple: violation

Facts – The first and third applicants are two women living in a stable homosexual relationship. The second applicant is the third applicant’s minor son. He was born out of wedlock. His father had acknowledged paternity but the third applicant had sole custody. The first applicant wished to adopt the second applicant in order to create a legal relationship between them without severing the boy’s relationship with his mother and an adoption agreement was concluded to that end. However, the domestic courts refused to approve the agreement after finding that under domestic law adoption by one person had the effect of severing the family-law relationship with the biological parent of the same sex, so that the boy’s adoption by the first applicant would sever his relationship with his mother, the third applicant, not his father.

Law – Article 14 in conjunction with Article 8

(a) Applicability – The relationship between the three applicants amounted to “family life” within the meaning of Article 8. Article 14, taken in conjunction with Article 8, was therefore applicable.

(b) Comparison with a married couple in which one spouse wished to adopt the other spouse’s child – The Court saw no reason to deviate from its findings in Gas and Dubois v. France and concluded that the first and third applicants in the instant case were not in a relevantly similar situation to a married couple.

Conclusion: no violation (unanimously).

(c) Comparison with an unmarried different-sex couple in which one partner wished to adopt the other partner’s child – The Court accepted that the applicants were in a relevantly similar situation to an unmarried different-sex couple in which one partner wished to adopt the other partner’s child. The Government had not argued that a special legal status existed which would distinguish an unmarried heterosexual couple from a same-sex couple and had conceded that same-sex couples could in principle be as suitable (or unsuitable) for adoption purposes, including second-parent adoption, as different-sex couples. Austrian law allowed second-parent adoption by an unmarried different-sex couple. In contrast, second-parent adoption in a same-sex couple was not legally possible. The relevant regulations of the Civil Code provided that any person who adopted replaced the biological parent of the same sex. As the first applicant was a woman, her adoption of her partner’s child could only sever the child’s legal relationship with his mother. Adoption could therefore not serve to create a parent-child relationship between the first applicant and the child in addition to the relationship with his mother.

The Court was not convinced by the Government’s argument that the applicants’ adoption request had been refused on grounds unrelated to their sexual orientation and that, therefore, the applicants were asking the Court to carry out an abstract review of the law. The domestic courts had made it clear that an adoption producing the effect desired by the applicants was impossible under the Civil Code. They had not carried out any investigation into the circumstances of the case. In particular, they had not dealt with the question whether there were any reasons for overriding th