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Supreme Court Upholds Gay Adoption | Slovenia

The Supreme Court of Slovenia has upheld a US ruling which allowed a gay couple with dual US-Slovenian citizenship to adopt a girl in America, making the couple the girl's legal parents in Slovenia as well.

With this judgement (Decision No. II Ips 462/2009-9 of 28 January 2010) the Supreme Court confirmed the validity of a judicial decision of the District Court with which the latter recognized a foreign judicial decision on adoption. Here is a basic description of steps that have occurred in this procedure:

1. In this particular case a gay couple (both have citizenships of Slovenia and the USA) adopted a child in the US. The basis for the adoption was a judgement of the High Court in New Jersey. The couple wanted to register the child in the birth registry of the Republic of Slovenia so that the baby could also get a Slovenian birth certificate, Slovenia nationality and Slovenian passport. This was possible only if the decision which was the basis for registration of the child was first recognized by the Slovenian courts.

2. Consequently the body responsible for birth certificates interrupted the procedure and directed the couple to initiate recognition procedure at the District Court of Ljubljana. The District Court thought that the law which was a basis for decision was unconstitutional (as the legislation in Slovenia does not recognize adoption rights to gay couples) and sent the matter to the Constitutional Court. The Constitutional Court rejected the matter saying that the legal basis for decision is not in the national law regulating adoption rights, but International Private Law Act. According to the International Private Law Act foreign judicial decisions have effect in Slovenia after they are recognized by a Slovenian court. In the procedure the court does not decide on the rights of the parties (as this as already been decided by the foreign court) but it only has to decide whether the effects of the recognition of foreign judicial decision would be contrary to international public order. Accordingly the matter was returned to the District Court.

3. District court then recognized the foreign judicial decision on adoption, recognizing full parental rights of the gay couple in Slovenia as well. It found that such decision was in the best interest of the child, as the child does not have any other parents. After the decision became final, the child obtained Slovenia birth certificate, nationality and passport.

4. The the Supreme Prosecutor's Office filed an extraordinary legal remedy called Request for Protection of Legality, which is a legal remedy that can be filed to the Supreme Court within 30 days from the day when the decision became final. Prosecutor's Office is one of the parties that has the right to file such extraordinary legal remedy. In this remedy the prosecutor claimed that this particular recognition decision was contrary to public order, as the slovenian national legislation does not recognize adoption rights to same-sex couples.

5. The Supreme Corut confirmed the judgment of the District Court. It found that the effects of the recognition of this decision in Slovenia are not contrary to international public order. Namely, international public order is composed of constitutional principles, basic principles of law, basic principles of the law of Council of Europe and the European Union, and not of each binding provision of the national law. Since Slovenia is part of Council fo Europea and the European Union, these two legal systems are also part of the legal system of Slovenia. The court found there is no consensus in Europe that same-sex couples should not adopt children, as many states have already introduced this right. Recognition of such decision is also the only way to protect the best interest of the child.

Although in Slovenia we don't have precedents, this judgement is an important piece of case law, as in any other similar cases the same decision will have to be taken. The case is particularly important for another Slovenian gay couple who became parents in the US with an assistance of a surrogate mother. They will now be able to invoke this decision, although Slovenia does not provide the opportunity for surrogate motherhood, as the consequences are the same.

Neza Kogosvek

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