Thursday, 21 February 2013

LGBT Adoption Round-Up

You know what it’s like:  you wait around for ages for a legal development in the arena of LGBT adoption, and then half a dozen come along all at once.  In this blog, I look at some of the more significant news that has emerged over the past fortnight from around the world affecting alternative adoptive families. 

Puerto Rico

The Supreme Court, in a 5-4 decision, affirmed (20 February 2013) a ban on adoption by same sex parents. 

The court was considering the case of a Puerto Rican lesbian who sought to legally adopt her partner's child.  The couple challenged a local law that "bans the adoption of a minor if the biological mother doesn't give up her rights, unless the couple consists of a man and a woman."

Puerto Rico’s highest court concluded that that law was valid, as Puerto Rico's constitution “does not prohibit discrimination based on sexual orientation.  The court acceded to arguments that the “traditional family” comprising a father and mother “best protected the well-being of minors”. 

Interestingly, the court's president, Federico Hernández Denton, disagreed with the majority decision.  He called the ruling unconstitutional in his minority Judgment.  The three other dissenting judges said they did not believe the constitution prohibited adoptions by same-sex couples, and that they would have liked the State to recognize second-parent adoption. 

The Russian Federation

According to media reports, the Russian State (20 February 2013) called the adoption of a Russian boy by a US woman who revealed she was gay only after the adoption concluded a “serious worry.”

Konstantin Dolgoy, Russia's human rights envoy, said the boy now is facing circumstances with his gay American family that are “harmful to his psychological health.”

The woman was living in a same-sex relationship, but decided not to disclose this during the adoption proceedings.  Her sexuality and relationship status only came to light when she and her partner separated several years later, and a dispute arose about custody of the child. 

Dolgoy’s homophobic rant continued thus:  [The boy] was sucked into an argument over a relationship that was quite dubious from the moral point of view.  We believe that [his] situation is unacceptable and harmful to his psychological health.”


France’s National Assembly (on 12 February 2013) adopted, on first reading (in a 329-to-229 vote), a bill affording marriage equality to same sex couples. 

The bill also opens up adoption to married people of the same sex, whether it be the joint adoption of a child by both spouses or the adoption of one spouse’s child.

The draft legislation includes adaptation measures, notably for determining the adopted child’s surname, since the current rule – whereby the child is given the father’s surname unless the parents decide otherwise – is inappropriate in the case of same-sex couples.

The bill now goes to the Senate for consideration, which is controlled by President Francois Hollande’s Socialists and his political supporters. 

"This law is a first necessary step, a social evolution that benefits society overall," said Socialist representative, Corinne Narassiguin, announcing her party's support for the measure. "Opening up marriage and adoption to homosexual couples is a very beautiful advance. ... It is an emblematic vote, a vote that will mark history."


Germany's Federal Constitutional Court gave its decision (19 February 2013) in a case about gay couples’ adoption rights.

The case concerned two women, one of whom had adopted a Bulgarian child some years earlier.  The other woman sought permission to adopt the child, which was denied.  The law permitted a civil partner to adopt his or her partner’s biological child, but not their stepchild or adopted child. 

The court held that a German constitutional provision that "marriage and the family shall enjoy the special protection of the state," could be used to justify ruling out same-sex partners adopting the other partner's adopted child.
Presiding Judge Ferdinand Kirchhof said:  "In marriage as in a civil partnership, adoption provides the child in the same way with legal security and material advantages in terms of care, support and inheritance law."

The court directed the government to draw up new legislation by June 2014.

The decision means that same-sex couples can now adopt the same child sequentially (that is, at different times to one another) in Germany.  Paradoxically, however, they still cannot adopt children together as a couple.


In the case of X and Others v. Austria, the European Court of Human Rights ruled (19 February 2013) that Austria had violated the European Convention on Human Rights.

The case concerned the inability of a woman in a same-sex relationship to adopt her long-term partner’s son without severing the birth mother’s legal ties with the child (that is, a second-parent adoption).

The Grand Chamber of the court in Strasbourg (comprising 17 Judges), found there was no persuasive reason to treat the couple differently from an unmarried heterosexual couple in the boy's adoption.  Under Austrian law, allowing the woman to adopt the boy would have severed his birth mother's parental rights, based on a 2006 Austrian decision that the term "parents" was intended to mean two people of different sex.

The court found that Austria had discriminated against the couple.  It ordered the government to pay them €10,000 in damages and about €28,500 in costs and expenses.

So, some progress balanced against some backsliding.  As the news from Puerto Rico and Russia demonstrates, there remain a good number of stalwart bigots who cleave to the view that a parenting ability is linked to the gender of the adults to whom one is attracted and with whom one falls in love.  And all despite the decades of evidence that has been consistent in showing that gay and lesbian parents are as capable as heterosexual ones, and their children as psychologically healthy and well-adjusted as children reared by heterosexual parents.

We’ve come so far, but we’ve got so far to go…

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