THE EUROPEAN COURT of Human Rights has ruled that a woman does not have to sever her legal link with her son before being able to have her child adopted by her lesbian partner, in a landmark ruling.

The Strasbourg-based court ruled that Austria’s ban on the procedure – where domestic rules only permit one woman to be a ‘mother’, or one man a ‘father’ to a child at any one time – were a violation of the European Convention on Human Rights, which assures the right to a private family life.

The court  ruled that the same-sex couple were being treated differently to how an unmarried heterosexual couple would be treated, finding that in the latter case, a single parent’s partner would have no difficulty in adopting the child and becoming their legal guardian.

The court overruled lower Austrian courts which ruled that the country’s laws defined “parents” as a man and woman – an interpretation which therefore made it impossible for one woman to be deemed the child’s ‘mother’ without her partner, the biological mother, first giving up that right.

It said that the Austrian government had not advanced any “convincing reasons” to show that its different treatment of an unmarried same-sex couple and an unmarried heterosexual couple was necessary to protect the family or the interests of the child.

However, the ruling stopped short of requiring European countries to give unmarried couples the right of second-parent adoption, irrespective of their sexual orientation.

No requirement to allow adoption for unmarried couples

This followed a ruling in a similar French case where the court did not require states to offer full same-sex marriage, and acknowledged that different European countries granted differing levels of legal recognition to same-sex couples.

It also observed that some countries do not allow unmarried couples to adopt, irrespective of their orientation or the biological status of one parent, and so did not require countries to offer this either.

Same-sex couples in countries without full gay marriage laws regularly face legal obstacles when it comes to the legal status of their children: most countries, including Ireland, will only recognise the biological parent as a child’s parent and overlooks the domestic status of the other parent.

This means that a lesbian couple who use the services of a sperm donor to conceive are not both perceived as ‘parents’. This can cause difficulty when children are legal minors and are admitted to hospital, for example: only the legally recognised parent can visit the child or have input in medical treatment, for example.

In cases where the biological parent dies, there is then no legally recognised relationship between the child and the other adult involved in their upbringing.

In a separate ruling issued yesterday, Germany’s highest court ruled that a man could legally adopt children which had already been adopted by his gay partner.

Previously, Germany only allowed a person to adopt their same-sex partner’s children if their partner was the biological parent of the child. Now, a child adopted by one person can be freely adopted by the adoptive parent’s partner, irrespective of their sex or orientation.

Read: Northern Ireland’s ban on gay and unmarried adoption overturned