I’m going to have to play a bit of catch-up here. What with one thing and another there are several items from the last month or so that I meant to talk about but didn’t. Here’s one–or really, two that are at least thematically related. Both concern adoption rights of same sex couples and both are grounded in commitments to equal treatment.
First, in this opinion the European Court of Human Rights struck down an Austrian law that prevented the partner of a lesbian from adopting her partner’s child. The problem here was that Austria treated the lesbian couple differently than it would have treated a heterosexual couple. If the woman had a male partner he would have been allowed to adopt the child. It was only because her partner was female that the adoption was prohibited.
The opinion notes that it would be permissible to prohibit unmarried couples from adopting at all. The problem here is not the prohibition–it is the differential treatment of similarly (unmarried) couples.
Of course, there is a possible rationale for distinguishing between the two couples. In one instance, the child ends up with two parents, one male and one female. In the other, if adoption is allowed, the child ends up with two parents, both female. There’s an argument to be made here (not one I like–but it can be made) that this difference could justify different treatment.
The argument would be that a mother/father family is different from a mother/mother family. It’s not about sexual orientation (which the court discusses) but rather about gender. If you assume that men and women are fundamentally different then treating mother/father families differently than mother/mother families might make sense.
This is actually an argument quite frequently raised when it comes to same-sex couple families. Indeed, the briefs in the pending cases about marriage before the US Supreme Court are peppered with arguments about the ways in which men and women (and hence mothers and fathers) are different. I think it is important to understand that advocating differential treatment for different sex and same sex couples necessarily incorporates this assertion.
It’s also important to note that these arguments are indepedent of arguments about genetic connection. If you begin from the assumption that legal parents should have a genetic connection to their children then you do in fact end up with mother/father families. But you don’t have to stick with mother/father families once the genetically related people are out of the picture. Thus, if a genetic parent dies, you could allow adoption by any subsequent partner of the surviving parent and still be consistent with your initial principle. If, on the other hand, you’re committed to the “child needs mother/father” model, then only a different sex partner could adopt. This, of course, is what the European Court bars.
The second case is here. Apparently Germany allowed adoption of a biological child of a same-sex partner but did not allow adoption of an adopted child of the same-sex partner. In other words, if A has a biological child, A’s same sex partner may adopt the child, but if A has an adopted child, A’s same-sex partner may not adopt the child. At least I think this is what the law was.
There are any number of ways there might be unjustifiable unequal treatment here. It makes little sense to me to permit the adoption of a biological child but not an adopted child. It’s not like a child can only have one adoptive parent. And I think (the translation of the opinion I have is a little clunky) that there are also issues of treating different kinds of couples differently.
In any event, there are clearly two decisions for European courts grounded in ideals of equality that make lesbian families a bit more secure.