German High Court Takes On Same-Sex Adoption

12/17/2012

Anka's Two Mommies

High Court Takes On Same-Sex Adoption

By Dietmar Hipp

DPA

Gays and lesbians have the right to adopt children in Germany -- but not as a couple. The country's highest court is set to review the issue on Tuesday, and its results will ultimately impact the question of legal equality for same-sex unions.

When she tells other children about her family, 13-year-old Anka coolly boasts that she has three moms: She was brought into the world by one, and she lives with two others, but she doesn't know who her dad is.

ANZEIGE

It may sound complicated, but there's a simple explanation. Anka was born in Bulgaria. Her biological mother gave her up for adoption immediately after birth, and the newborn was taken in by an institution. At the age of four, she was adopted by Claudia Peters, an interior designer from the western German city of Münster. Claudia lives in a civil union with another woman, Constanze, a gynecologist and Anka's third mom.

But it's a different story in the eyes of the law, which doesn't view Constanze as Anka's mother -- and hasn't allowed her to adopt the girl. In Germany individuals may adopt children independent of their sex, marital status or sexual orientation. But according to the current legal view in Germany, same-sex couples are not allowed to adopt children as a pair.

The Green Party has been trying to change this for years, and in 2010 they introduced a corresponding bill in the German parliament, the Bundestag, but couldn't win a majority. That same year, German state justice ministers failed to convince the federal government to support draft legislation.

The case addresses the basic question of the legal equality of marriages and homosexual civil unions -- but it also touches on the more fundamental question of what defines a family, and whether or not it can consist of mother, mother and child.

Unequal Treatment

This Tuesday, the German Constitutional Court will deliberate on a constitutional complaint filed by Constanze Peters, along with the case of a gay couple from Hamburg whose son is now 12 years old. It was a similar story here, as well. One man was allowed to adopt the boy in Romania, while his partner was not.

Until now, the legal status quo has been as follows: When one partner brings an adopted child into a marriage, the other is also legally entitled to adopt the child. In a registered civil union, the same-sex partner may adopt the other's biological child -- but not a child that his or her partner has adopted. The judges in Karlsruhe will now have to decide whether this unequal treatment violates the German constitution.

If the two couples win their case, it would pave the way for same-sex partners in civil unions to gradually be able to adopt children. It would also possibly make a ban on gay and lesbian couples jointly adopting children politically untenable. To protect their daughter from any possible harassment, Constanze and Claudia Peters don't want to see their real names -- or their daughter's name -- printed in the press. They say that they never dreamed that they might end up writing legal history when they first looked into adopting a child in 2003. "We were relatively naïve in our approach," says Constanze. "We never wanted just a single adoption, but we told ourselves that we would go ahead with this now, and the rest would work itself out later on."

Claudia, 58, and Constanze, 53, have been a couple for the past 20 years. They even outwardly resemble each other, both with the same short haircut and rimless glasses. They both like to drink elderberry punch, and they both have identical, broad gold bands -- except Claudia wears her ring on her right hand and Constanze wears hers on her left hand. They purchased the rings in 1996, before there was the option of a registered civil union. Shortly thereafter, they both increasingly felt the desire to adopt a child.

Adoption Abroad

They acquired the requisite papers from the youth welfare office in Münster. In early summer 2003, they visited a children's home in Bulgaria -- Claudia as the would-be adoptive parent, and Constanze officially there just to give advice as a friend. They had removed their rings earlier as a precaution. They both remember the moment when three-year-old Anka came running into the room. "She immediately clicked with us," they say.

It took one year and a number of additional visits before the adoption was finalized, thanks to the help of an adoption placement center working according to the stringent regulations of The Hague Adoption Convention. In July 2004, Constanze und Claudia were able to take their daughter Anka back to Germany with them.

In Germany there are significantly more couples looking to adopt than there are small children available for adoption. Consequently, youth welfare offices can require applicants to meet strict criteria. Individuals are generally only able to adopt abroad.

When Anka left the children's home, she couldn't quite speak properly yet, and she had no experience with nature because she had rarely been outdoors. Now, she scores goals on her soccer team. Both mothers look after the girl. Claudia reserves time for her daughter on Mondays and Thursdays, Constanze takes Tuesdays and Wednesdays, and they collectively share responsibility on the remaining days. Their daughter calls them both "mom."

Decision Hinges on Child's Legal Status

From a legal standpoint, it's still unclear what Constanze may and may not do. From a financial perspective as well, it makes a difference that she is not officially viewed as a mother. For instance, she is not able to deduct a child allowance from her taxes. And if something were to happen to Claudia, presumably Constanze would be appointed as Anka's legal guardian -- but it's not something she could count on.

"All three of us basically feel that it's important" that Constanze can also adopt Anka, says Claudia. "I also never planned to be solely responsible." In 2005, they entered a civil union as a prerequisite for the additional adoption but, as expected, the courts rejected Constanze's bid to adopt Anka.

In the ruling on their case in late 2009, the regional court in Hamm wrote that the generally accepted parenting model still sees "raising children as primarily a job for a family consisting of a father, mother and child," and thus Germany's adoption laws provide "substantive grounds for unequal treatment of married couples versus same-sex partners."

One year later, though, the regional court in Hamburg took a different view in a similar case brought by a gay couple. This time, the judges decided to refer the matter to the German Constitutional Court for a decision. The court noted that lawmakers allow the adoption of a biological child by the other member of a civil union with the argument that "the child's legal status" would thus be "significantly improved." This justification, says the Hamburg regional court, makes absolutely "no distinction" between civil unions with biological and those with adopted children, but rather applies "equally to both scenarios."

'At a Disadvantage'

The Constitutional Court has been bolstering the rights of homosexual couples for years. In 2002, it recognized registered civil unions, and in 2009 it confirmed that it cannot be inferred from the special constitutional protection of marriage "that other civil unions should be treated differently than marriage and accorded fewer rights."

This view has not likely changed. Since February 2011, there has even been a female judge on the Constitutional Court. Her name is Susanne Baer and she's a Berlin law professor who lives with a woman in a registered civil union.

The child's welfare is also unlikely to carry weight as an argument in favor of unequal treatment. Each individual situation has to be examined during an adoption process. There is no known scientific proof that it is harmful for children to grow up with homosexual parents. In fact, a study commissioned by the Federal Justice Ministry on the "living situations of children in same-sex civil unions" came to the conclusion in 2009 that children in so-called rainbow families "develop just as well" as children in other types of families.

Rita Coenen, the lawyer representing the lesbian couple, says it is a "fact" that the children adopted by only one life partner "live with parents who are in a homosexual relationship, and the family ties thus already exist." It consequently makes sense, she argues, that this relationship "should be strengthened by allowing a joint adoption."

This, says Claudia, is also "the main motivation for our constitutional complaint." She says that Anka is "at a disadvantage" compared to other children "because she is deprived of one of her parents." Constanze adds: "We are family, we have always been a family, and we will always remain a family, no matter what the Constitutional Court decides."

Translated from the German by Paul Cohen

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