Adoption and same-sex couples: new rights in European constitutional space after the ruling X and others v. Austria

The European “backyard of rights” is enlarging and Member States face a new period of acknowledgment of human rights. The guarantee of the new rights occurs both through national legislation and through the jurisprudence of international or supranational courts. The European Court of Human Rights (ECtHR) became the “fourth judge” called to intervene when the domestic legislation is not guardian of new rights regarding the recognition of the same-sex couples but also the adoption of a child by these couples. In this sense, recently the ECtHR ruled that the impossibility of second-parent adoption in a same-sex relationship is discriminatory when such adoption is possible for unmarried heterosexual couples, although the exclusion of the biological parent. Thus, the decision of the ECtHR established the principle that the adoption of children by same-sex partners should be possible, as it is for heterosexual unmarried couples.