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 the refusal of the child’s father to consent to the adoption. In contrast, the regional court had underlined that the notion of “parents” in Austrian family law meant two persons of the opposite sex and had stressed the interest of the child in maintaining contact with both those parents.
Given that the legal impossibility of the adoption had consistently been at the centre of their considerations, the domestic courts had been prevented from examining in any meaningful manner whether the adoption would be in the child’s interests. In contrast, in the case of an unmarried different-sex couple they would have been required to examine that issue. The applicants had thus been directly affected by the legal situation of which they complained since the adoption request was aimed at obtaining legal recognition of the family life they enjoyed, all three could claim to be victims of the alleged violation.
The difference in treatment between the first and third applicants and an unmarried different-sex couple in which one partner sought to adopt the other partner’s child had been based on their sexual orientation. The case was thus to be distinguished from Gas and Dubois, in which the Court had found that there was no difference of treatment based on sexual orientation between an unmarried different-sex couple and a same-sex couple as, under French law, second-parent adoption was not open to either.
There was no obligation under Article 8 to extend the right to second-parent adoption to unmarried couples. However, given that domestic law did allow second-parent adoption in unmarried different-sex couples, the Court had to examine whether refusing that right to (unmarried) same-sex couples served a legitimate aim and was proportionate to that aim.
The domestic courts and the Government had argued that Austrian adoption law was aimed at recreating the circumstances of a biological family. The protection of the family in the traditional sense was in principle a legitimate reason which could justify a difference in treatment. The same applied to the protection of the child’s interests. However, in cases where a difference in treatment based on sex or sexual orientation was concerned, the Government had to show that the difference in treatment was necessary to achieve the aim. The Government had not provided any evidence to show that it would be detrimental to a child to be brought up by a same-sex couple or to have two mothers and two fathers for legal purposes. Moreover, under domestic law, adoption by one person, including one homosexual, was possible. If he or she had a registered partner, the latter had to consent to the adoption. The legislature therefore accepted that a child might grow up in a family based on a same-sex couple and that this was not detrimental to the child. There was also force in the applicants’ argument that de facto families based on a same-sex couple existed but were refused the possibility of obtaining legal recognition and protection. These considerations cast considerable doubt on the proportionality of the absolute prohibition on second-parent adoption in same-sex couples.
The Government had further argued that there was no consensus among European States regarding second-parent adoption by same-sex couples and that consequently the State had a wide margin of appreciation to regulate that issue. However, the issue before the Court was not the general question of same-sex couples’ access to second-parent adoption, but the difference in treatment between unmarried different-sex couples and same-sex couples in respect of such adoptions. Consequently, only ten Council of Europe member States, which allowed second-parent adoption in unmarried couples, might be regarded as a basis for comparison. Within that group, six States treated heterosexual couples and same-sex couples in the same manner, while four adopted the same position as Austria. The narrowness of that sample did not allow conclusions to be drawn as to a possible consensus among European States.
The instant case did not concern the question whether the applicants’ adoption request should have been granted, but the question whether the applicants had been discriminated against on account of the fact that the courts had had no opportunity to examine in any meaningful manner whether the requested adoption was in the second applicant’s interests, given that it was in any case legally impossible.
The Government had failed to give convincing reasons to show that excluding second-parent adoption in a same-sex couple, while allowing that possibility in an unmarried different-sex couple, was necessary for the protection of the family in the traditional sense or for the protection of the interests of the child. The distinction was therefore discriminatory.
Conclusion: violation (ten votes to seven).
Article 41: EUR 10,000 jointly in respect of non-pecuniary damage.
(See Gas and Dubois v. France, no. 25951/07, 15 March 2012, Information Note no. 150)

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