ADF International

Mother and Child
legal

X and Others v. Austria

Date of most recent action: 19 Feb 2013

European Court of Human Rights forces Austria to accept same-sex adoption


What’s at Stake

  • Promoting the best interest of children
  • Promoting the importance of having a mother and a father

Summary

Austria’s adoption laws are designed to put children first. They rightly recognise that adoption is primarily about the needs of the child, rather than the wishes of adults. Unfortunately, the European Court of Human Rights undermined this view in its decision on an adoption case involving a same-sex couple.

Two women in a same-sex relationship applied to jointly adopt the son of one of the women. Their application was denied because Austrian law prohibits same-sex adoption under such circumstances. The reason for this is that it would sever the legal relationship of the other biological parent. In this case, the boy’s father and his relatives would lose all legal rights to his son. Refusing to give up, the women then took the case to the Grand Chamber of the European Court of Human Rights.

ADF International provided the Court with legal arguments. These arguments defended a child’s right to be brought up in a stable, married family situation with both a mother and a father. They also provided ample evidence that this family model must be protected and that social science does not support the so-called “no differences” theory – that same-sex couples do just as well in raising children. These submissions became a central point of argument during the oral hearing of the court case.

In February 2013 the Court ruled by 10 votes to 7 that Austria was in violation of the European Convention on Human Rights because it treated same-sex couples differently to unmarried opposite-sex couples. However, the Court did rule unanimously that treating same-sex couples differently to married couples was not discriminatory.

“A child is not property and should not be subjected to social experimentation when the evidence clearly dictates that the natural family is the optimal family model,” said senior counsel Roger Kiska. “The best interests of the child clearly demonstrate that a child does best with a mother and a father. Despite the Court’s unfortunate encroachment on Austrian sovereignty, ADF International still welcomes the Court’s higher protection of children within traditional marriage. Adoption has to be about providing a family for a child, not the other way around.”

Our Role in the Case

ADF International provided legal expertise to the Grand Chamber of the European Court of Human Rights on behalf of Fédération Pro Europa Christiana, Österreichische Gesellschaft zum Schutz von Tradition, Familie und Privateigentum and Freunde kinderreicher Familien in Österreich.

Legal Documents

Judgment – 19 Feb 2013

Brief – 24 Aug 2012

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