Belgian Constitutional Court enhances adoption rights co-mothers in two landmark judgments

18/07/2012
Submitted by Paul Borghs

In 2006 Belgium opened-up (joint and co-parent) adoption to same-sex couples. The opening-up of adoption is of interest to lesbian partners or spouses who have children through artificial insemination. Since 2006, the co-mother can become the second legal parent after co-parent adoption.

The Belgian law requires that the biological mother consents to the adoption by the co-mother. Only when the biological mother didn’t care for the child, or has put the child in danger, the court may disregard the refusal for adoption of the biological mother.

Furthermore, the co-mother can only adopt when she’s married with the biological mother, living in a legal cohabitation (‘cohabitation légale’) with the biological mother or living – for at least three years - in a de facto cohabitation with the biological mother at the moment of filing the petition for adoption.

Both conditions imply that the co-mother can’t adopt anymore when it comes to a break before the completion of the adoption procedure,

In two landmark judgments of the Belgian Constitutional Court, both from 12 July 2012, the adoption rights of co-mothers were significantly improved.

The first judgment concerns a married lesbian couple with a child born after artificial insemination. After the birth of the child, the adoption procedure was started with the consent of the biological mother. However, shortly after filing the petition for adoption the couple decided to get a divorce. The biological mother withdrew her consent to the adoption by the co-mother. According to the co-mother this was irresponsible. The Constitutional Court stated that the benefit of the child from a double lineage was more important than the right of the biological mother to withdraw her consent. The Constitutional Court ruled that the adoption law is unconstitutional in so far that it doesn’t offer the possibility to take into account the irresponsible character of the refusal of the biological mother to consent to the adoption.

The second case concerns a lesbian couple, with two children, who lived together in a de facto relationship for about ten years. The children were born through artificial insemination. The couple broke up before the adoption by the co-mother could be realized. Yet, the co-mother still wanted to adopt the children with the consent of the biological mother. The court denied the adoption because there was no cohabitation anymore when filing the petition for adoption. The Constitutional Court stated that the adoption could contribute to the creation of a stable environment for the upbringing of the children. The Constitutional Court ruled that the adoption law is unconstitutional in so far that it doesn’t allow the co-mother to adopt, with the consent of the biological mother, when there’s no cohabitation anymore at the moment of the filing of the petition for adoption.

Both judgments have improved significantly the adoption rights of divorced lesbian couples with children.


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