As part of the litigation offensive by Rechtskomitee LAMBDA (RKL), Austria´s LGBT-rights organisation, the Austrian Constitutional Court, as the first court in Europe doing so, has struck down the ban on joint adoption by same-sex couples. RKL is calling now for an immediate lift of the marriage-ban which has lost any basis.
The two women, represented by RKL-president Graupner, 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 2013 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 is banned by Austrian law.
Consideration of best interests of the child was prohibited
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 were 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
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).
With its judgment delivered yesterday (VfGH 11.12.2014, G 119-120/2014) the Austrian Constitutional Court, the first and oldest Constitutional Court in the world, now also has struck down the adoption ban on the basis of discrimination of same-sex couples and on the basis of violation of the best interests of the child. It is the first court in Europe striking down a ban on joint adoption of same-sex couples. Each of both partners may adopt a child individually, which then lives with the same-sex couple. But the law prohibits the child to establish legal ties to the second social parent and, in addition, thus deprives it of alimony and inheritance-rights. And same-sex couples are as capable to raise children as opposite-sex couples, the judges said.
Equal rights to found a family
The Constitutional Court struck down the ban by 31 December 2015. Austria thus becomes the only country in Europe granting same-sex couples full adoption rights but nevertheless still excluding them from marriage. Same-sex couples have the same right now to found a family as opposite-sex couples but they are still not allowed to marry. When the Constitutional Court upheld the prohibition of marriage in 2012 (VfGH 09.10.2012, B 121/11, 137/11) same-sex couples had no right yet to second-parent-adoption, no right yet to joint adoption and no right yet to medically assisted procreation. In the meanwhile same-sex couples not only enjoy these rights but also a two-third majority of Austrians supports same-sex marriage.
„The marriage-ban ultimately has lost any basis and also children in rainbow-families should have the opportunity to have married parents and to live in a family based upon marriage“, says Dr. Helmut Graupner, president of RKL and counsel of the couple, „We are calling for a free vote in parliament in order to enable MPs to freely decide if they want to enforce human rights and the will of the people“.