An Austrian lesbian couple who are attempting to deprive the natural father of their child his right to access and care for the child are set to have their case heard before the Grand Chamber of the European Court of Human Rights

The case, X and others v. Austria, involves a woman who wishes to adopt the son of her female partner.

The two women are arguing that current Austrian law regarding adoption is an infringement of their private life and discriminatory.

Under Austrian law, adoption by a man severs the link between the child and his/her biological father and adoption by a woman severs the link with the biological mother.

Such adoptions are possible in heterosexual stepfamilies as a man living with the mother of the child can replace the father and adopt the child and the woman living with the father of the child can theoretically substitute for the mother.

In these cases, however, the biological parent loses all personal and legal links with their child; they do not even have the right to see the child.

These adoptions with substitution requires either the consent of the parent losing their right or a court decision based on the interest of the child and the indignity of the biological parent

The two women, who have been granted annonymity, claim that the consequence of this rule is to prohibit adoption by the same-sex partner of the biological parent, therefore it constitutes discrimination based on sexual orientation.

The two women want to be recognided legally as a “family”, however the Austrian authorities declared that this adoption would be contrary to the interest of the child and refused it.

In their view, a woman could not be a substitute for the father and there was no cause for depriving the father of his rights.

The counsel of the applicants, Helmut Graupner, is the director for Europe of the International Lesbian, Gay, Bisexual, Transgender & Intersex Law Association (ILGLaw) as well as legal counsel of ILGA-Europe.

The father of the child is not just a sperm donor and information from Austrian courts show that the father has regular contact with his son. Furthermore, the child bears his father’s name andthe father pays alimony for him.

Dr Gregor Puppinck, the director of the European Centre for Law and Justice, which fights for family and religious freedom rights at a European level said that the father has the right and the duty to go on caring for his son both under national and international law (especially Convention on the Rights of the Child Art. 5, European Convention on the Legal Status of Children born out of Wedlock Art. 6).

In press release, he added that international conventions relating to adoption insist on the necessity of the consent of the biological parents as a prerequisite for adoption.

Dr Puppinck also asked: “Even before examining the law, two factual questions arise at once:

“Is the father informed of the proceedings in Strasbourg? One can legitimately wonder, since the applicants have been granted anonymity. Leading such proceedings without his knowledge would be unfair, he would not be given the opportunity to be heard although he has a definite interest in the case

“Does the son agree? Nothing indicates it in the statement of facts; on the contrary, as he is under age, his mother acts in his name and he is represented by the same lawyer as his mother and her partner.”

He added: “[W]hat is at stake in this case is the extent of the power of adults on children. Not only are children shifted around following the swing of adults’ love affairs and separated from their father or mother because of divorce; now adults should allegedly be allowed to falsify children’s filiation to satisfy their own desires and wipe out their past, even if they obliterate that of the child as well. The reality of filiation is a natural root which protects children against the egotism and fickleness of adults.”