Autore
Vitucci, Maria Chiara

Titolo
Orientamento sessuale e adozione nella giurisprudenza della Corte europea dei diritti umani
Periodico
Diritti umani e diritto internazionale
Anno: 2013 - Volume: 7 - Fascicolo: 2 - Pagina iniziale: 481 - Pagina finale: 498

Same-sex couples can exercise parental rights by way of adoption. There are basically three formsof adoption: joint adoption by a married couple, adoption by a single and second-parent adoption.The European Court has recently recognized that both the relationship between a homosexualparent and his/her child and the relationship between members of same-sex couples constitute familylife protected by Article 8 of the Convention. Little by little the Court is starting to find nationallaws regarding adoption in breach of the Convention. Indeed, these laws discriminate betweenheterosexual and same-sex couples without a reasonable justification. In the Court's judgment,when considering whether there is a difference in treatment between same-sex and heterosexual couples,special attention should be paid to the choice of the term of comparison. Comparison with amarried couple or with an unmarried different-sex couple could lead to different results as to whetherthere is a violation of article 14 taken in conjunction with Article 8. The State margin of appreciationin the area of adoption law is normally wide, in application of the 'consensus' issue: the less commonground there is among the various legal orders, the broader is the margin left to States. However,when it comes to issues of discrimination on the grounds of sexual orientation, the margin isnarrow. Some doubts could be cast on the Courts line of reasoning concerning the 'consensus' issuein the decision of X and others v. Austria. Diverting from its traditional use of the common groundline of reasoning, the Court selects only a few member States to affirm that the narrowness of thesample is such that no conclusions can be drawn as to the existence of a possible consensus. Behindthis argument there is probably the willingness of the Court to stress the importance of non discriminationvalue. Nevertheless, to this end, the Court should choose a sounder line of reasoning.



SICI: 1971-7105(2013)7:2<481:OSEANG>2.0.ZU;2-V
Testo completo: http://www.mulino.it/download/article/10.12829/74165
Testo completo alternativo: http://www.mulino.it/doi/10.12829/74165

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