## Facts

- The applicants were an unmarried same-sex couple (two women) and the biological child of one partner; they lived together in a stable family unit.
- The non-biological partner sought second-parent adoption of the child so the child would have two legal parents without terminating the biological mother’s parental status.
- At the time, Austrian law permitted second-parent adoption for unmarried different-sex couples but, as interpreted and applied, did not permit it for same-sex couples.
- Domestic courts rejected the adoption application on the ground that the legal framework did not allow second-parent adoption within a same-sex relationship and cited concerns about preserving the biological father’s legal position and contact.
- The applicants alleged discriminatory interference with their family life, invoking Article 8 (family life) alone and Article 14 (non-discrimination) taken with Article 8.

## Issues

1. Whether excluding unmarried same-sex couples from second-parent adoption, while allowing it for unmarried different-sex couples, violated Article 14 in conjunction with Article 8.
2. Whether the refusal also violated Article 8 taken alone.

## Decision

- The Grand Chamber held that the applicants’ relationship constituted “family life” under Article 8.
- The Court found the applicants were in a comparable position to unmarried different-sex couples seeking second-parent adoption because the decisive feature was the social-parent role within a stable family, not sexual orientation.
- The Court concluded Austrian law created a difference in treatment based on sexual orientation by making second-parent adoption available to unmarried different-sex couples but not to same-sex couples.
- Applying heightened scrutiny, the Court held Austria failed to provide an objective and reasonable justification for the exclusion; therefore, Article 14 taken with Article 8 was violated.
- The Court did not recognize a general Convention obligation to create second-parent adoption; it focused on non-discrimination where the State had already made the institution available to a comparator group.

## Legal Principles

- Article 14 applies to differential treatment in the enjoyment of a substantive Convention right; it is assessed here in conjunction with Article 8’s protection of family life.
- Unmarried same-sex couples may be “relevantly similar” to unmarried different-sex couples for adoption-related benefits when both function as stable families and the applicant is a social parent.
- Distinctions based on sexual orientation require particularly serious reasons; the State’s margin of appreciation is narrow.
- The child’s best interests cannot justify a blanket statutory exclusion of a category of families; best-interests analysis must be capable of case-specific assessment.
- A State is not required to introduce second-parent adoption, but if it permits it for unmarried different-sex couples, it cannot exclude same-sex couples without objective and reasonable justification.

## Conclusion

The Court held Austria violated the Convention by denying second-parent adoption to an unmarried same-sex couple in a context where the same adoption route was available to unmarried different-sex couples, and it rejected general appeals to the child’s welfare, the father’s position, or tradition as sufficient to justify an automatic exclusion.


X & Others v. Austria, App. No. 19010/07 (Eur. Ct. H.R. Feb. 19, 2013) (Grand Chamber)