Stepchild adoption compatible with the German Basic Law

31Aug09
In 2005 the German Civil Partnership Act had been amended to expand the legal equality of same-sex couples. Since then a so called stepchild adoption ensures that a partner can adopt the biological child of the other partner. If a partner has a biological child, and the other partner is the person who takes care of the child and will continue to worry, this connection should have the possibility to be permanently legalized. The rights of the other natural parent are not affected. What counts are the general rules of the adoption law, which must agree with the other biological parent of the adoption of the child by the life partner or spouse. The competent authorities must also consider in each case whether the step-child adoption meets the interests of the child or not.
All these obligations were fulfilled in the case of Mrs. K. She lives in a registered civil partnership as she wanted to adopt the child of her partner. The biological father of the child gave his agreement and so did the responsible youth welfare office as they decided on grounds of the child interest. What happened then was that a little Local Court in Bavaria didn’t want to decide the adoption request of Mrs. K. The judge in charge was confident that the legal permission, which gives the opportunity to adopt the child of a partner, is not compatible with Article 6 of the German Constitution because a civil partner would be treated equal to a biological parent. Under these circumstances the case has been given to the Federal Constitutional Court.

The Second Senate of the Federal Constitutional Court has now stated that the stepchild adoption is compatible with the Basic Law. On the grounds of Article 6, there is no difference between social parenthood and biological parents. The judges said clearly that the biological parent does not take pre-eminence over the legal and social-family parenting.

But what does the decision mean for the rights of same-sex couples? Even if the decision does not say anything in relation to full right of adoption for homosexual couples, which is still not allowed in Germany, there is at least one positive thing apart from the decision itself. The Federal Constitutional Court criticizes the Bavarian Local Court for their interpretation of Article 6. That is why some politicians come to the conclusion that this positive statement of the Federal Constitutional Court could be an opportunity for the conservatives in Germany to finally realize the social realities and to give up their resistance against a full adoption right of civil partners, which is more than discriminatory.

We will see what happens; especially after the elections next month.

Posted on eurOut on August 27, 2009

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