This month the European Court of Human Rights and Germany’s Federal Constitutional Court (which often takes a leading role in human rights jurisprudence which is frequently cited also by Supreme and Consitutional courts in countries outside Europe) have published decisions regard two separate cases involving the adoption of children by same-sex couples.
In Germany, adoption by same-sex couples is still not permitted, although it is legal for one partner in a registered same-sex relationship to adopt the biological child of the other partner. In its latest case on the matter, the Federal Constitutional Court held that the current prohibition of successive adoption by same-sex partners is incompatible with the constitution. That means that in the future one partner in a registered same-sex partnership may adopt a child and later the other partner may adopt the same child. The court has instructed the legislature to change the law accordingly no later than 30 June 2014. Until then, the existing rule which allows for the adoption of the biological child of one partner is to be interpreted extensively to the effect outlined above.
With this decision, Germany’s highest court has pushed the door wide open to a further weakening of the protection of the family, which is also enshrined in the constitution. In this case, after elaborating the need for an equal treatment for all children concerned the court dealt with the constitutional protection of the family only briefly. Unfortunately the court apparently did not find it necessary to deal with the question how life with two attachment figures of the same gender affects the well-being of children and their rights in this regard. One reason might be that the rights of children are thought to be adequately protected by the fundamental rights which form the first part of Germany’s constitution.
Also this month, the European Court of Human Rights, decided a case directed against Austria, X and others v. Austria. The Court held “that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights on account of the difference in treatment of the applicants in comparison with unmarried different-sex couples in which one partner wished to adopt the other partner’s child“.
These cases may might trigger a discussion as to the need to include children’s rights more expressly in the constitution. Yet, this seems unlikely, given the current political situation in Germany and Austria. In parts of Eastern Europe, though, the protection of the rights of children is taken more seriously. The last word has not yet been spoken on this matter but it remains important to take into account in particular the human rights of the children concerned and it should not be forgotten that while there is a right to found a family, there is no right to “have” a child – especially not at the expense of the well-being of the child. In particular the latter part remains under-researched and a more holistic approach which goes beyond politics and human rights law appears necessary in order to safeguard the human rights of children and families to the greatest possible extent.