The Grand Chamber judgement ofX. and others v. Austria from 201339, the key case in this sub-chapter, concerns a female couple where one of the women was the biological, legal and social mother and the sole guardian of her child, and she and her female partner sought the possibility of second-parent adoption from the Austrian authorities. The child had been born outside marriage and had been living with his mother and her partner since the age of five years. The child had a father and a legally valid relationship with him, and the father and child enjoyed regular contact. There were two large questions in this case: the first one was that Austrian legislation offered the possibility of second-parent adoption to married opposite-sex couples without severing the tie with the other biological parent, but this was impossible for same-sex couples. If a same-sex couple sought second-parent adoption, this could lead to the closest parent, in this case the biological mother and the sole guardian, losing her status as a mother, which clearly would have been against the child’s interests.
The other question complicating the case at hand was that the child had two parents, a mother and a father, and the father’s consent was needed for an adoption to take place. InX. and others, the father was against the proposed adoption, and the mother and her partner argued that the court should override his view as, according to them, he had “displayed the utmost
35Giubergia; Giubergia-Gaveglia; Giubergia; Cruz v. Italy, no. 15131/89, Commission decision of 5 March 1990, discussed in Chapter 6.2.
36Kearns v. France, no. 35991/04, 10 January 2008.
37X. v. the United Kingdom, no. 7626/76, Commission decision of 11 July 1977.
38 SeeAgeyevy v. Russia, no. 7075/10, 9 September 2013,Kurochkin v. Ukraine, no. 42276/08, 20 May 2010 andX. v. France, no. 9993/82, Commission decision of 5 October 1982.
39X and Others v. Austria[GC], no. 19010/07, ECHR 2013.
antagonism”40 towards theirde facto family unit. While exhausting their legal remedies in the Austrian courts, the couple had argued that “the refusal by the… father to consent to the adoption was not justified as he had been acting against the interests of the child”41 and that the mother’s partner’s interest in the adoption “outweighed [the] father’s interest in objecting to it”42. The issue of possible discrimination arose from the fact that if the unmarried female couple in question had been composed of a woman and a man, “the District Court would have carried out a detailed examination and would have had to deliver a separate decision”43 on whether the adoption sought would have been in the child’s interests. The Grand Chamber of the European Court of Human Rights ruled in the case ofX and others that discrimination had taken place under Article 14 taken in conjunction with Article 8 compared to unmarried opposite-sex couples, but not compared to married couples. The crux of the matter was that their case could not be examined due to legal impossibility of investigating it further compared to unmarried opposite-sex couples.
The judgement of Gas and Dubois v. France from 201244 concerned a female couple from France who had had a child with the help of anonymous donor insemination in Belgium, as assisted reproduction services have for a long time been legally unavailable for lesbian couples in France. After giving birth in 2000, the birth mother was the only legal parent of the child. The couple in question concluded aPacs in 2002, but this form of civil unions does not entail a legal relationship to one’s partner’s child.45 The couple wanted to make the birth mother’s partner into an adoptive parent to the child by simple adoption (adoption simple), a lighter form of adoption than full adoption (adoption plénière) where all ties are terminated irrevocably and the child is issued with a new birth certificate. However, in simple adoption, parental rights were transferred completely to the adoptive parent if the child was underage. The only exception to this was in the case of married couples, where they could jointly become the child’s parents. In theory, the birth mother could have passed parental rights to the social mother, who could have then delegated parental rights partly back to her, so both of them would have been parents to a certain extent.46 The problem was pretty much the same as inX and others v. Austria: it was not possible to have two female parents, so the birth mother would have lost her rights if they were passed to the other one.
Their application was refused, and the authorities argued that it was not in the child’s interest to have the birth mother’s status altered even temporarily47.
40X and Others v. Austria, para 14.
41X and Others v. Austria, para 65.
42X and Others v. Austria, para 65.
43X and Others v. Austria, para 65.
44Gas and Dubois v. France, no. 25951/07, ECHR 2012.
45Gas and Dubois v. France, paras 9-10.
46Gas and Dubois v. France, paras 11-16.
47Gas and Dubois v. France, para 15.
Filiation: Adoption and Assisted Procreation
The European Court found no violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life). Thus, it saw thatGas and Dubois had not been discriminated against compared to a married opposite-sex couple, who would have been eligible to seek second-parent adoption in such a case.48
Emonet and others v. Switzerland from 200849 involved an adult woman, her mother and the mother’s cohabiting male partner. The adult woman’s father was deceased. All three had been living together for about six years before the woman married and left her family home to live with her husband.
However, the marriage broke down, and due to an illness and an ensuing disability, she was dependent on the care given by her mother and her mother’s partner. They decided that they wanted the mother’s partner to adopt her so that they could become a family also in the legal sense of the term.50 In 2000, the mother’s partner, Mr Emonet, applied for an adoption with the Canton of Geneva Court of Justice with documents proving the approval of the woman to be adopted (Ms E) and her mother (Ms F). According to the case material, the Court of Justice pronounced the adoption without hearing or consulting the applicants about the effects of the adoption the following year.51 After the adoption had been pronounced by the Court of Justice, cantonal civil status authorities informed the applicants that the pronounced adoption meant that the legal relationship between the mother and the daughter had been severed, that the mother’s partner was now her only parent and she would have Mr Emonet’s surname. The mother and daughter objected to this and asked their legal relationship to be restored.52 The reason for severing the relationship was that Ms F and Mr Emonet were not spouses as they were cohabiting, and the law in place dictated that second-parent adoption was possible only when the couple in question were married.53
After exhausting the legal remedies and possibilities of appeal available to them in Switzerland, they complained to the European Court, arguing that their right to respect for family life under Article 8 had been violated. The Swiss Government argued that especially as the applicants were represented by a legal counsel, they should have been aware of the legal consequences of their situation, and that ignorance of the law was not a problem the State could be held accountable for.54 The European Court noted that they did sharede factofamily life:
48Gas and Dubois v. France, paras 68 and 73.
49Emonet and Others v. Switzerland, no. 39051/03, 13 December 2007.
50Emonet and Others v. Switzerland, paras 9-11.
51Emonet and Others v. Switzerland, see paras 13 and 51.
52Emonet and Others v. Switzerland, para 14.
53Emonet and Others v. Switzerland, para 15.
54Emonet and Others v. Switzerland, para 30.
In the present case one of the partners in the couple is the biological mother of the adopted person, who was about 30 years old when she was adopted. The three applicants all lived together from 1986 to 1992, then the first applicant left the family home to live with her husband, whom she divorced in 1998. Since 2000 she has needed care and support, which the other two applicants provide. The Court therefore considers that what amounts to ade facto family tie exists between the three applicants[.]
Emonet and Others v. Switzerland, para 37
The European Court stressed that regardless of whether they were represented by a legal professional or not, everyone is expected to know the law.
Nevertheless, it found that they could not be blamed for not knowing what kind of “far-reaching consequences” the request for adoption would entail and found a violation of Article 855. In conclusion, it noted in the spirit ofKroon and others v. the Netherlands that respecting
…the applicants’ family life required that biological and social reality be taken into account to avoid the blind, mechanical application of the provisions of the law to this very particular situation for which they were clearly not intended. Failure to take such considerations into account flew in the face of the wishes of the persons concerned, without actually benefiting anybody.
Emonet and Others v. Switzerland, para 86
Emonetprovides a further example of the differences between adoption within marriage and outside it, as the marital relationship has indeed been seen in many jurisdictions as opening the possibility to rearrange family ties to conform to the ideal of the two-parent family of an opposite-sex couple.
Outside marriage, regardless of enduring cohabitation between a couple, a request for adoption is seen as providing protection and security to a child legally abandoned by her original parent(s). It is open to debate whether the marital requirement is essential, but as debates on same-sex marriage show, the creation of a legally valid couple relationship is not just something an authority such as the State sees fit to require in certain contexts such as adoption, but also a privileged status that many couples wish to acquire.
A darker angle to intra-familial adoption may be deduced from two inadmissibility decisions concerning Italy in 1990, N.Q., M.S. and S.S. v.
Italy56 andGiubergia and others v. Italy57. Both of these cases concerned a Philippinean woman giving birth to a child who was then recognised by a
55Emonet and Others v. Switzerland, para 85.
56N.Q., M.S. and S.S. v. Italy, 12612/86, Commission decision of 9 March 1990
57Giubergia; Giubergia-Gaveglia; Giubergia;Cruz v. Italy, no. 15131/89, Commission decision of 5 March 1990.
Filiation: Adoption and Assisted Procreation
married Italian man to be his child born out of wedlock. In the first complaint, the child was born to a Philippinean maid working in Rome who did not officially recognise the child at birth due to the availability of anonymous birth in Italy. The child was recognised by a married man who claimed to have had an affair with the mother and that he was the child’s biological father. A Child Court suspected the applicants, due to their contradicting testimonies, of having made a pact that the mother would hand the child over to the married couple concerned as they were childless and that the alleged father of the child had recognised the child in order to avoid a formal adoption procedure. The child was taken away from the applicants and placed into state care.58
In the complaint made byGiubergia and others v. Italy59 a married couple had already legally adopted one child from the Philippines. During a journey to the Philippines, the husband recognised a child to be his own and brought her to Italy. In Italy, he tried to incorporate the child into his family as a child born out of wedlock he claimed he had fathered during an earlier trip to the Philippines. The tribunal in question dismissed this request and ordered for the child to be taken into state care. This case was a highly mediatised event, where the applicants, a married couple, made appeals to various high-profile figures in Italy and gathered wide public support (see Scobie 1989 and Haberman 1990). In order to curb trafficking in children, the tribunal did not waive. The Commission (ECHR), too, deemed the complaint inadmissible.
However, judging by the facts presented, Giubergia if not both cases might have concerned a private surrogacy arrangement and definitely act as a prelude to later surrogacy-related judgements from 2014, Mennesson v.
France andLabassee v. France (see Chapter 6.4).