Johanna Westeson - The ICHRP

ART bring to the fore questions surrounding access to (reproductive) health care more
generally. This makes them relevant from a sexual health perspective in a broader sense.
2. Council of Europe
Jurisprudence of the European Court of Human Rights
In Karner v. Austria, 275 the Court established that norms that treat unmarried same-sex
couples differently than unmarried opposite-sex couples are discriminatory. The applicant
was a man who was found to have been discriminated against when an Austrian court
denied him to take over the lease of his deceased, same-sex, partner. See details in Chapter
1A: Non-discrimination.
At the time of writing, a case is pending where the issue of legal recognition of same-sex
couples will come to the fore. The case is Schalk & Kopf v. Austria, 276 in which a samesex
couple complains that being denied marriage – or any equivalent institution by which
their relationship could be recognized under Austrian legislation – constitutes a violation of
Article 8 in conjunction with Article 14.
The European Court of Human Rights has not directly addressed the issue of adoption for
same-sex couples, but relevant trends can be extrapolated from the two cases discussed
below. 277 In these cases, the Court examined the right of single people, who identify as
homosexuals, to be authorized for adoption. It reached different conclusions in the two
cases.
In Fretté v. France, 278 the applicant was a single, homosexual man who had been denied
authorization to adopt a child although French law allows for single persons to adopt, and
despite the fact that he had shown good qualities for child-rearing. The European Court
made reference to the division in the scientific community over possible consequences of a
child being adopted by one or more homosexual parents and held that states must be
granted a broad margin of discretion in this area. It found that the principle of
proportionality had not been infringed upon and, hence, that there had been no breach of
the Convention.
Six years later the court reversed itself, in E.B. v. France. 279 A woman who lived in a stable
relationship with another woman sought a single-parent adoption (French law does not
allow same-sex couples jointly to adopt children). French courts had denied her the
authorization to adopt based, inter alia, on the fact that she failed to provide a ‘paternal
referent’ for the child. The applicant submitted that the domestic authorities had based
decision on her ‘lifestyle’ – that is, her homosexuality – and that this was discriminatory
treatment prohibited by Article 8 taken together with Article 14 of the Convention.
275 Application no. 40016/98, decided on 24 July 2003.
276 Application No. 30141/04, hearing scheduled for 25 February, 2010.
277 See also X, Y and Z v. United Kingdom, 1997, in which the Court examined the right to legal recognition
of a post-operative female-to-male transsexual as the father of the child born by his female partner. This case
is discussed in Chapter 4A: Gender identity, gender expression, and intersex.
278 Application no. 36515/97, decided on 26 February 2002.
279 Application no. 43546/02, decided on 22 January 2008.
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