On 19 November 2015 the Constitutional Court rejected petition of one of its chambers proposing declaration of unconstitutionality of one of the provisions of the Family Act effectively allowing adoption of the child by the parent’s partner only if they are married. The chamber argued that the contested provision violates the partners’ right to respect for family life and that it goes against the best interest of the child. The Constitutional Court held that the legal regulation does not violate Article 10 (2) of the Charter of Fundamental Rights and Freedoms or Article 3 (1) of the Convention on the Rights of the Child, and that the potential legislative change allowing second-parent adoption in cases of unmarried couples is fully in the hands of the lawmaker.
One of the reasons for the exclusive possibility of second-parent adoption in cases of married couples is the stability of the marriage, which statistically provides higher guarantee of stable educational environment for the child. The Constitutional Court found this requirement to be clearly in the best interest of the child. However, the main criterion in favor of marriage presented the fact that in case the couple separates the child’s situation is better secured. It is only in case of divorce that the court needs to decide on the child’s custody, support and alimony. Moreover, the court has to take into account the child’s best interest. The Constitutional Court held that even though the contested legal regulation poses restrictions for unmarried couples, this restriction is sufficiently justified by the above mentioned facts, and therefore is in the best interest of the child.
Considering the right to respect for family life, the Constitutional Court noted that the right to adopt or to be adopted does not constitute a fundamental right protected by the constitutional order or international treaties. At the same time the Constitutional Court stated that the law provided and still provides minor child and his/her actual family the tools enabling cohabitation of the family and fulfillment of the child’s wishes (e. g. restriction on parental responsibility or change of the child’s surname without the consent of the second biological parent). Therefore the Constitutional Court found the contested legal regulation constitutional also on this ground.