Prohibition of adoption in Registered Partnership Act is unconstitutional

Government Council for Human Rights approved initiative of its Committee for sexual minorities on June 18, 2009 which is directed at abrogation of Section 13, paragraph 2 of Act No. 115/2006 Coll., on Registered Partnership as amended, according to which “Lasting partnership prevents any of partners to become an adoptive parent”. Suggestion of the Committee for sexual minorities derived from Analysis of Czech legal regulations for adoption of a child by gays, lesbian and bisexual people in the light of the European Union law and European Convention on Human Rights and Fundamental Freedoms processed for Gender Studies, o.p.s. by JUDr. Mgr. Janem Wintrem, Ph.D. (hereinafter referred to as “Analysis”).

In accordance with the Act No. 94/1963 Coll., on Family, as amended, anybody who can guarantee by his/her way of life that adoption will be for child’s and society’s welfare can become an adoptive parent. Act on family thus enables anybody having a proper life regardless of their sexual orientation to apply for adoption. It is necessary to emphasize that it is an individual adoption when a child is adopted by an individual who becomes a mother or a father of a child. If a person applying for individual adoption is married, he/she also needs his/her wife’s/husband’s approval pursuant to section 66 paragraph 2 of Act on Family. Joint adoption of a child - when both married partners become parents according to law - is according to Section 66 paragraph 1 of Act on Family reserved only to husband and wife, an unmarried couple thus cannot adopt a child. A couple of the same sex cannot under any conditions jointly adopt a child according to Czech legal regulations – not as unregistered but also even not as registered. Moreover, the person entering registered partnership cannot adopt a child individually as an individual, since entering registered partnership is an absolute obstruction for adoption. Registered partnership in the Czech Republic is intended only for couples of the same sex; as follows not only from law but also from explanatory report to this act according to which “ legal form of registered partnership is exclusively intended for homosexual couples of the same sex”. Gays and lesbians can adopt a child individually, but at the moment when they enter registered partnership, they are utterly denied this possibility. The analysis at stake examined the question of accordance of adoption ban pursuant to Section 13, paragraph 2 of Act on Registered Partnership with European Convention on Human Rights and Fundamental Freedoms and the Constitution of the Czech Republic. European Convention underlies the right to freedom of interference with private and family life under Article 8 and under Article 14 freedom from discrimination. The interpretation of these articles got a new dimension following the ruling of the European Court for Human Rights in E.B. v. France of 2008. Ms. E.B. was a teacher having a long-term relationship with another woman having been denied to adopt a child. The denial was based on the lack of paternal referent and lack of commitment of partner to adoption. Ms. E.B. appealed to European Court of Human Rights (hereinafter referred to as “ECtHR”) where Grand Chamber decided. According to Analysis “The court derived from argumentation of criticized rulings - often referring to the homosexuality of claimer - that the homosexuality of the claimer had been a decisive reason for denial of her application. Examining the absence of male referent is legitimate for application but in rulings for adoption authorization by an individual this aspect was, according to ECtHR, emphasized excessively. The Grand Chamber of ECtHR held that there had been violation of Article 14 of Convention freedom from discrimination and Article 8 of Convention, i.e. the right to respect family and private life. French authorities had treated claimer differently due to her sexual orientation without stating convincing and valid reasons justifying the different treatment.”

For evaluating adoption denial in Act on registered partnership, this verdict is of cardinal importance. It follows from the conclusions of analysis that “Following the European Court of Human Rights verdict on E.B. v. France of January 2008, which newly interpreted Article 14 in connection to Article 8 of European Convention on Human Rights and Fundamental Freedoms, the provision of section 13 paragraph 2 of Act on registered partnership according to which a registered partner may not adopt a child is in apparent contradiction with European Convention and Constitution of the Czech Republic since it represents forbidden discrimination on the basis of sexual orientation in relation to right to family and private life. European Convention is part of Constitution of the Czech Republic and thus sufficient reason for abrogation of section 13 paragraph 2 of Act on Registered Partnership by Constitutional court for its discordance with constitution.”

Whole analysis is available at:  http://www.feminismus.cz/download/analyza_adopce_final.pdf

The analysis was funded by OSF Praha foundation.