Back to Blog
September 24th, 2012 by Robert Franklin, Esq.
The lawyer for Austria says the case is “very simple,” and for the sake of millions of European fathers, we hope he’s right. Read about it here
It seems that the unnamed father and mother had a child. They split up and she decided she’s a lesbian. She has primary custody of the boy, but the dad has taken an active role in his upbringing. The lad is a year away from becoming legally an adult. The father is an upstanding guy against whom there are no claims of abuse or unfitness, and never have been.
But despite all that, the two women want the boy all to themselves and have petitioned various Austrian courts to terminate the father’s parental rights so the mother’s partner can adopt the young man as her son. They petitioned an Austrian court and lost. They lost again at two appellate levels.
According to the Statement of Facts compiled by the European Court of Human Rights, a District Court refused to allow the adoption in 2005 based on Austria’s Civil Code which recognizes adoption by one person replaces the natural parent of that same sex, and severs the relationship between the child and that natural parent.
A Regional Court dismissed an appeal in 2006, observing that when a child has both parents there is no need to replace one of them.
The Supreme Court also dismissed their appeal. It noted that adoption aims to put children in situations as close as possible to the natural family, entrusting suitable people with the education and custody of orphans or of children whose parents could not take care of them.
So now they’ve taken their case to the European Court of Human Rights, Europe’s highest court for this type of claim. Its decision is final and binding on all 47 countries of the Council of Europe; it cannot be appealed.
Just what is the case the two women are making to the court? After all, in Austria, as in every country I know about, a parent’s rights must be terminated before another adult can legally adopt a child. And, as in most jurisdictions, in order to terminate this father’s rights, the women must show that he’s either unfit to parent or has abandoned the child. This father has done neither, as the lower courts duly found.
Well, it seems the women are claiming that Austria’s requirement that the father be proven to be unfit and have his rights terminated before they can adopt his son discriminates against them. The European Charter guarantees the right to form a family and be a part thereof, so I suspect that the two women are claiming that, if they’re not allowed to terminate this father’s rights, Austria is violating the Charter and discriminating against same-sex couples.
There’s a lot wrong with that argument. First, it would be a strange notion of familial rights that allowed a person with no biological relationship to a child to destroy the relationship between a biological father and his son. Like it or not, the father and his son have a family relationship even though he’s not married to or cohabiting with the boy’s mother. If the court rules in the women’s favor, it’ll constitute open season on the rights of all biological parents. Any time two parents divorced or separated and one of them formed a relationship with another person, that person could simply assert his/her rights to the child and oust the other parent from the child’s life. And the person could do so even though the non-custodial parent is the most loving, caring, responsible parent on earth. None of that makes sense, and it particularly doesn’t under the right-to-family-relations section of the Charter.
Second, Austria’s law clearly doesn’t discriminate against same-sex couples. It treats heterosexual couples the same as it does same-sex ones. If it were a man-woman couple who were trying to adopt this boy, Austrian law would reach the same conclusion – that it won’t terminate the rights of a fit father just because the new couple wants it to. So there’s no discrimination against same-sex couples.
I’m all for same-sex couples having the same rights as everyone else. There’s no evidence that gay men or lesbian women aren’t perfectly capable parents, and a good bit that they are. But the idea that the rights and relationship of a biological parent and his/her child should be trumped by the demands of whoever comes along is far too pernicious and anti-family to even consider. I assume the two women in the case are fine, loving parents, but they must share this child with his father. Countless millions of stepparents do the same every day.
Back to Blog