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Austria: Constitutional Court Holds That Civil Code Provision May Not Be Interpreted to Restrict Same-Sex Couples’ Power to Adopt After Separation

(Nov. 27, 2018) On October 3, 2018, the Austrian Constitutional Court (Verfassungsgerichtshof Österreich, VfGH) held that after a same-sex couple separates, one former partner must remain able to adopt the other’s biological child. The Court stated that section 197, paragraph 3 of the Civil Code must be interpreted in conformity with the Constitution so that same-sex couples and different-sex couples and their children are treated the same in matters of adoption. The Court’s ruling did not affect the validity of the provision itself. (VfGH, Oct. 3, 2018, Docket No. G 69/2018-9 (VfGH G 69/2018-9), VfGH website (in German); ALLGEMEINES BÜRGERLICHES GESETZBUCH [ABGB] [CIVIL CODE], JUSTIZGESETZSAMMLUNG [JGS] No. 946/1811, as amended, § 197, para. 3, Rechtsinformationssystem (RIS) [Legal Information System] website.)

Applicable Law

Section 197, paragraph 3 of the Austrian Civil Code provides that “[i]f the child is adopted only by an adopting father (mother), the family relations according to paragraph 2 are extinguished with respect to the biological father (mother) and his (her) relatives.” Paragraph 4 states that “[i]f a spouse, a registered partner, or a life-partner adopts the child of his or her spouse, registered partner, or life-partner, the family relations according to paragraph 2 are extinguished solely with respect to the other parent and his (her) relatives.” The applicant alleged that paragraph 3 violated the equal treatment principle and the right to respect for family life guaranteed by article 8 of the European Convention on Human Rights (ECHR) in conjunction with article 14 of the ECHR. (VfGH G 69/2018-9, at 18; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (ECHR), Nov. 4, 1950, 213 U.N.T.S. 221, ECtHR website.)

Facts of the Case

The applicant had been living in a same-sex partnership with the biological mother of a minor child for sixteen years. The child had been conceived during the partnership via consensual artificial insemination in Finland. It did not have a legal father. After the child’s birth, both women were equally involved in the child’s upbringing and were granted shared custody by the district court in 2010. At the time, adoption for same-sex couples was not allowed. In 2013, the couple separated, but the applicant still shared custody with the biological mother. (VfGH G 69/2018-9, at 3.)

In March 2017, the applicant and the child, represented by his mother, concluded an agreement whereby the child would be adopted by the applicant. The contract explicitly stated that the family relations to the biological mother would not be extinguished. They submitted a motion to the District Court Leopoldstadt to approve the adoption agreement, which was denied. (Id. at 2 & 3.) The district court stated that an adoption was not possible, because the applicant would not replace the biological mother. In the district court’s view, the explicit wording of the applicable provision in the Civil Code prevented such an arrangement. Furthermore, it held that as the couple was separated, they could not benefit from section 197, paragraph 4 of the Civil Code. (Id. at 7.)


The Constitutional Court reiterated that according to the jurisprudence of the Austrian Supreme Court of Justice and the explanatory memorandum to the Civil Code, the legislature intended that in the event of adoption by one person, the legal relationship with the biological parent of the same sex as the adoptive parent ceases to exist, while the relationship with the parent of the opposite sex remains intact. This interpretation from 1960 was based on the idea that only two persons of the opposite sex could be considered “parents of a child.” (Id. at 41.)

The Court held that such an interpretation has the effect that a former same-sex partner cannot adopt the biological child of the other partner after a separation without replacing the biological parent. It stated that such a result is generally unwanted and not in the best interest of the child. It therefore de facto excludes adoption in the case of separated same-sex partners while allowing it for separated different-sex couples. In the Court’s view, the legislature therefore makes a distinction on the basis of sexual orientation in the case of adoption after a couple has separated. (Id. at 42.)

The Constitutional Court ruled that there was no objective and reasonable justification for this unequal treatment. (Id. at 43.) It noted that the current law on adoption ensures that a request for adoption is granted only if it is in the best interests of the child and a stable environment can be guaranteed despite the separation of the couple. (Id. at 45.) It agreed with the applicant that the current interpretation of the Civil Code that requires replacing the parent that corresponds to the gender of the adoptive parent violates the equal treatment clause as well as article 8 of the ECHR in conjunction with article 14 of the ECHR. (Id. at 46.) The Court therefore concluded that section 197, paragraph 3 of the Civil Code must be interpreted in conformity with constitutional requirements to mean that an adoptive mother can replace a biological father as well as an adoptive father a biological mother. (Id. at 46 & 47.)