Are gay couples technically sterile

Gays and lesbians should also be allowed to adopt strangers' children

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Vienna - In Austria, same-sex couples are not allowed to adopt a child of their choice together. This is what it says in the General Civil Code. This is what it says in the federal law on registered partnerships. And the way it stands, it's unconstitutional.

This was stated by the Constitutional Court (VfGH) in a judgment published on Wednesday. There is "no objective justification for a regulation that differs on the basis of sexual orientation and which basically excludes registered partners from the adoption of a common child of choice," says the finding.

According to the constitutional judges, the existing ban on adopting homosexual couples contradicts the principle of equality and Article eight of the European Convention on Human Rights (ECHR), i.e. the right to respect for family life. The article does not in itself establish a right to an adoption; But if there is such a thing at national level, it must be formulated "in accordance with equality and non-discriminatory". This has not been the case so far, said VfGH President Gerhart Holzinger.

Traditional families are not attacked

The case was initiated by a lesbian couple from Vienna. One of the women in her partner had given birth to a child after artificial insemination, which her partner adopted. This so-called stepchild adoption was made possible by the European Court of Human Rights in 2013. As a result, however, the couple wanted to adopt another child who was not physically related to any of the partners. And such an adoption of a common child of choice was previously forbidden for homosexual couples.

Fundamental concerns that it would be detrimental to the child's well-being if they grow up with homosexual instead of heterosexual parents are "unsuitable from the outset" to justify a ban, according to the declaration of the constitutional judge. "Protection of marriage" or the traditional family will not be attacked by the opening of the adoption law.

Mother Father Child

The reactions in politics to the judgment were largely positive. SPÖ family spokeswoman Angela Lueger was pleased that "the long-standing demand for absolute equality in adoption law" is now being met: "Family is more than mother, father, child." The Greens welcomed the "historic verdict", and club chairwoman Eva Glawischnig is now calling for marriage to be opened up to same-sex couples. The Neos regretted that the highest court judgment was required first.

Vice Chancellor Reinhold Mitterlehner made it clear that "the ÖVP wanted to continue to force the traditional family, but the verdict would be respected". Only FPÖ family spokeswoman Anneliese Kitzmüller spoke of a "black day for children": "Nobody claims that homosexuals are bad parents, but such a construct is unsuitable for the psyche of children."

Brandstetter promises implementation

Justice Minister Brandstetter (ÖVP) now wants to "implement the law on time". The repair deadline runs until December 31, 2015, a constitutional law must then allow the possibility of adoption for couples in registered partnerships. Holzinger did not want to comment on whether couples who were not partnered should also be allowed to adopt children. That was not part of the question at hand and should be checked if necessary.

Until the amendment is made, only individuals - regardless of their sexual orientation - and married couples are allowed to adopt elective children in Austria. Austria still belongs to a minority of member states within the EU that do not grant same-sex couples full adoption rights. In the future, "Austria will be the only country in Europe that grants same-sex couples all adoption rights, but still refuses marriage," says Helmut Graupner from the Lambda Legal Committee. (Michael Matzenberger,, January 14, 2015)