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PAVEL BUREŠ
CYIL 5 ȍ2014Ȏ
Natural development supposes natural links and natural
18
reproduction.
19
Life shows
us, however, that there can be specific situations to be regulated by specific rules
(one-parent family, child on adoption etc.). Not to promote the family as a natural
and fundamental cell of society
20
would run counter to society itself. Some individual
desires and feelings can be taken into consideration, but they cannot be the only
ratio,
even though they are veiled by the discrimination denominator.
These issues were examined in detail in a recent ruling of the ECtHR in the case
X and others v. Austria.
21
Three applicants – two women living in a stable homosexual
relationship and a first applicant’s minor son were claiming a violation of their family
life by the fact that Austrian law did not permit adoption of the boy by the second
applicant without severing the boy’s relationship with his mother. The boy, being
born out of wedlock, was recognized by his father later on, and the father, while not
living with them, has nevertheless maintained a stable relationship with his son.
The violation of Art. 14 taken in conjunction with Art. 8 of the Convention
was seen by applicants in light of the fact that, unlike in a non-married heterosexual
couple, one partner is able to adopt the second partner’s child without the first
severing its relationship to the child, this was not possible for homosexual couples.
This caused, according the applicants, discrimination against the enjoyment of their
family life. They argued that, while being in a situation similar to that of different-sex
couples, they did not have the legal possibility to proceed to second-parent adoption.
This different treatment of same-sex couples based on Austrian law led, according to
the applicants, to discrimination and so to a violation of the Convention.
Under Austrian law an adoption in the case of a couple means that the adopting
person is substituting a person of the same sex; thus in the case of an adoption by
a woman, the latter is replacing the biological mother of the adopted child and so
rupturing the legal link between the biological mother and the child. This situation
was not conceivable for the applicants, and they were claiming a violation of their
family life based on discrimination in sexual orientation. The Court held (by ten to
seven) that there was a violation of Art. 14 taken in conjunction with Art. 8 of the
Convention when the applicants’ situation is compared with that of an unmarried
differentsex couple in which one partner wishes to adopt the other partner’s child.
It is not an aim of this article to analyse in detail the specific arguments of the
parties and the Court and its conclusions.
22
We will show, however, that in this case
the Court, by focusing only on some specific matters, did not take advantage of
the method of the overall conception of a human being. Even though it may not
18
By natural we mean based on natural laws and conceived by “Nature”, without entering at this point in
the discussion on specific reproductive rights and technical plausibility.
19
Even though human beings are in many aspects different (and differentiated) from animals, in their
physical characteristics and anatomy, and so reproductive issues, they are similar. The human being
needs male and female individuals to reproduce.
20
UNHR mentions that the family is entitled to protection by the society and the State – Art. 16 § 3.
21
Case “X and Others v. Austria”. [GC] – 19010/07 Judgment 19. 2. 2013 [GC].
22
For some critiques of argumentation, one can see the joint dissenting opinion of seven judges.