Communicated on 12 February 2019
FIFTH SECTION
Application no. 1928/19
S.W. and others
against Austria
lodged on 3 January 2019
SUBJECT MATTER OF THE CASE
A. Facts
The first and the third applicant are a same-sex couple living in a registered partnership. The second applicant is the first applicant’s biological daughter and was adopted by the third applicant in 2014.
On 17 November 2015 they lodged an application with the Margareten Register Office (Standesamt) to be issued a birth-certificate for the second applicant indicating both the first and the third applicant as the second applicant’s mothers.
The Margareten Register Office dismissed the application on 1 June 2017 pursuant to section 53 § 3 Personal Statute Act 2013 (Personenstandsgesetz 2013) taken together with the Implementing Regulation to the Personal Statute Act 2013 (Personenstandsgesetzes-Durchführungsverordnung 2013), stating that documents indicating civil status had to be issued pursuant to the sample forms annexed to said regulation. The sample forms included two data fields to fill in the child’s parents’ data, one headed “Mother/Parent” (Mutter/Elternteil) and the other one headed “Father/Parent” (Vater/Elternteil).
The Vienna Administrative Court (Verwaltungsgericht Wien) dismissed the appeal on 11 September 2017.
The Administrative Court decided not to deal with the applicants’ appeal as it had already decided on the raised questions in a similar case, namely in its decision of 15 December 2015, case no. Ro 2015/01/0011.
On 26 June 2018 the Constitutional Court decided not to deal with the complaint due to lack of prospects of success.
B. Relevant domestic law
Section 54 § 1 (4) of the Personal Statute Act (PSA) provides that a birth certificate has to include the parents’ names. Upon application, a birth certificate only containing the child’s name, sex and the date and place of birth can be issued under section 54 § 2 PSA. According to section 28 § 1 of the Implementing Regulation to the PSA, birth certificates must be issued pursuant to the sample forms 4 -5c annexed to that regulation.
Complaints
Relying on Article 8 and Article 14 of the Convention, the applicants complain that it was clear from the fact that the third applicant was listed under the header “Father/Parent” that she was not the second applicant’s biological mother. While it was obvious from their first names that both the first and the third applicant were women, and therefore that one of them was not the second applicant’s biological mother, the revelation which one of them was the adoptive parent constituted a violation of the family’s strictly personal sphere (höchstpersönlicher Lebensbereich) and infringed their right to informational self-determination (informationelles Selbst-bestimmungsrecht). Moreover, it was discriminatory, as the birth certificate of a child of different sex parents did not reveal if the parents were biological or adoptive parents.
QUESTIONs tO THE PARTIES
1. Does the first applicant have victim status with regards to the issuance of the second applicant’s birth certificate?
2. Is there a right under Austrian law to be issued a birth certificate which includes a child’s adoptive parents’ data? Is there such a right under Article 8 of the Convention?
3. Do birth certificates in cases of adoption document the adoptive parents’ names?
In cases of children of same-sex couples after a second-parent adoption, does the birth certificate reveal which parent is the adoptive parent, and which the biological one?
If so, would there have been a positive obligation on the State under Article 8 § 1 of the Convention to grant the applicants’ request for the issuance of a birth certificate which did not disclose which one was the adoptive parent of the second applicant?
4. Do birth certificates of children of opposite-sex couples after second-parent adoption reveal if a parent is an adoptive or a biological parent?
If not, have the applicants suffered discrimination under Article 14 of the Convention, read in conjunction with Article 8? In particular, have the applicants been subjected to a difference in treatment in comparison to different sex couples when it comes to the issuance of birth certificates in the context of second-parent adoption?
If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?
No.
Firstname LASTNAME
Birth year
Nationality
Representative
S.W.
1983
Austrian
H. Graupner
E.W.
2014
Austrian
H. Graupner
I.W.
1974
Austrian
H. Graupner
Full & Egal Universal Law Academy