In re Foreign Adoption, Supreme Court of the Republic of Slovenia (28 January 2010)
The Prosecutor General filed an appeal, called a request for protection of legality, against a decision of the Ljubljana District Court to recognise a foreign adoption by a same-sex couple.
The applicant parents, a same-sex couple with dual Slovenian and United States citizenship, had registered a same-sex civil partnership in New Jersey in the United States. Under New Jersey law, same-sex couples in registered partnerships had the same rights and benefits as opposite-sex couples under the civil marriage statutes, including the right to joint adoption.
The couple had jointly adopted a girl in the United States. Their request for recognition of the adoption in Slovenia was granted by the District Court of Ljubljana. The Prosecutor General then challenged the district court decision.
Whether recognition of a foreign adoption by a same-sex couple violated public order.
Constitution of Slovenia, Articles 8, 53, 54, and 56.
Marriage and Family Relations Act 1976, Articles 12 and 135.
Private International Law and Procedure Act, Article 100.
Registration of a Same-Sex Civil Partnership Act.
The Court cited foreign legislation that permitted same-sex couples to jointly adopt children.
Convention on the Rights of the Child, Article 3 (“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”).
European Convention on Human Rights, Article 8 (right to respect for private and family life) and Article 14 (non-discrimination).
Reasoning of the Court
The Prosecutor General argued that recognising a foreign adoption order giving parental rights to same-sex partners would be contrary to public order in Slovenia.
The Prosecutor General noted first that, under Article 135 of the Marriage and Family Relations Act, no child could be adopted by more than one person, unless the adoptive parents were a married couple or were unmarried cohabiting opposite-sex partners. The Registration of a Same-Sex Civil Partnership Act did not regulate parenting issues and did not make same-sex unions equivalent to marriage.
According to the Prosecutor General, the objective of marriage and non-marital heterosexual unions was to create a biological family, which could not be accomplished in a same-sex union. A family could also be created by adoption, but in the case of same-sex partners this was not acceptable. Therefore, the recognition of foreign adoption by same-sex couples was contrary to public morals and impossible to enforce in domestic courts.
The Court first noted that the protection of legality procedure was an extraordinary judicial review of final judicial decisions, which was available to State Prosecutors. In the present case, the first instance court did not decide on the question of child adoption by same-sex partners but merely acknowledged a foreign adoption judgment. The question was therefore not whether adoption by same-sex partners was allowed under domestic law but whether the recognition of such adoptions would be contrary to the public order of the Republic of Slovenia.
“Public order” took account of legal norms, customary international law, fundamental moral principles and the vital economic and political interests of the country. Since values are continuously changing, public order was a relative concept.
Whether the request for the protection of legality was well-founded depended on whether the effect of recognising joint adoption by same-sex partners would contradict public order. The Court had earlier held that, in considering such issues, it had to take into account international public order.
Since Slovenia had become a member of the European Union and the Council of Europe, the understanding of public order of their institutions had become part of the public order of the Slovenian State. As a consequence, the Court could not refuse to acknowledge a foreign judgment that was contrary to the public order of Slovenia if this refusal would be unjustified or disproportionate from the “European point of view”.
According to the Court, the role of public order differed according to whether the family relationship in question was first established within the country or abroad. In the latter case the Court only had to recognise already acquired rights, and the role of public order was less important. The reservation of public order was therefore to be used only when its non-application could lead to consequences that were unacceptable to the domestic legal system.
According to Article 135 of the Marriage and Family Relations Act, either of the partners in a same-sex union had the right to adopt the biological child of the other partner, but they could not jointly adopt a child who was not the biological child of one of them. However, the Court noted that the Marriage and Family Relations Act was not part of international public order and was therefore not relevant for the decision at hand.
The European Convention, on the contrary, was undoubtedly part of the public order of Slovenia. One of the prohibited grounds of discrimination under Article 14 of the European Convention was sexual orientation. Although not explicitly mentioned in the text, the prohibition of discrimination based on sexual orientation was based on European Court caselaw.
The European Parliament in several resolutions had called upon its members to abolish discrimination based on sexual orientation and remove obstacles to same-sex marriage and adoption. Slovenia had not yet implemented these recommendations, but the Court noted that legislation allowing for same-sex couples to jointly adopt children had been enacted in several European countries.
Next the Court considered the principle of the protection of the best interests of the child, set forth in Article 3 of the Convention on the Rights of the Child and allegedly violated by recognition of same-sex partners’ joint adoption. This principle was also part of the relevant international public order.
According to the Prosecutor General, recognition of the adoption would have been detrimental for the adopted girl. However, the first instance court had reached the opposite conclusion.
Furthermore, the fact that the current domestic legal framework did not allow same-sex partners to jointly adopt a child did not suffice to conclude that recognition of the adoption would be contrary to morals. In the Court’s view, individual behaviour could not be considered immoral when wider social consensus on the issue was absent. The Prosecutor General did not claim that consensus existed on the issue at stake.
The Court concluded that joint adoption by same-sex partners did not contradict international public order and that therefore public order could not be the basis for rejecting the recognition. The request for the protection of legality was thus unfounded.
In re Foreign Adoption, Supreme Court of the Republic of Slovenia – Slovenian (full text in Slovenian, PDF)
In re Foreign Adoption, Supreme Court of the Republic of Slovenia – English (full text in English, PDF)