Judgment Pl. ÚS 7/15 – The simple fact that a person lives in a registered partnership should not be an obstacle to the adoption of a child

28 June 2016

The plenum of the Constitutional Court (judge rapporteur Vojtěch Šimíček) has granted the motion of the Municipal Court of Prague for the annulment of Section 13 para. 2 of the Act on Registered Partnership, which precluded the adoption of a child to persons living in a registered partnership.

The primary emphasis of the Constitutional Court lies in the fact that there exists no fundamental right to adopt a child – neither on a constitutional basis, nor on the basis of the international obligations of the Czech Republic. At the same time, the Court recalls that there is not even a fundamental right to marry/to enter into registered partnership with respect to persons of the same sex. Therefore, the Court accepts that it is mainly for the lawmaker to decide whether or how to regulate the relations among same-sex partners.

According to Section 800 para. 1 of the Civil Code, both or one of the spouses in a heterogenic relationship may become adoptive parents, and, in exceptional cases, a single person may become an adoptive parent. In this context, the Court finds the legal preference of marriage in accord with the constitution, as it corresponds to the institution of marriage as the closest mode of cohabitation among persons of different sex involving not only a number of rights, but also many obligations. This fact clearly distinguishes marriage from other types of cohabitation and gives a priori a greater chance of fulfilling the chief purpose of adoption which is, and must be, primarily the best interest of the child.

However, in the present case the heart of the problem lies in the fact that on one hand the Civil Code in exceptional circumstances allows adoption by a single person, but on the other hand the Act on Registered Partnership explicitly precludes that such a person lives in a registered partnership. As a consequence, a person in fact living with a same-sex partner may apply to become a suitable adoptive parent, but a person living in a registered partnership may not. Neither the legal acts themselves, nor their explanatory reports, provide any reasonable explanation that may have led the lawmaker to the adoption of such a legal regulation, which the Court finds illogical, irrational and in its effect discriminatory.

In this light, the Constitutional Court has come to the conclusion that the contested legal provision breaches the right to human dignity. Provided that the provision excludes from the enjoyment of the right a specific group only based on the fact that the relevant persons decided to enter into a registered partnership, renders them de facto “second class citizens“, stigmatises them and evokes an impression of their inferiority, essential otherness and apparently also even the inability to take care of children properly – unlike other persons.

The Court therefore concludes that the contested legal provision, which for absolutely no reason excludes one group of people (registered partners) from the opportunity of child adoption, in its effect interferes with their human dignity and breaches their right to private life. 

However, the Court does not find a breach of the right to family life. The Court states that as there exists no fundamental right to adopt a child, a negative decision in the case of an application to adoption cannot breach the right to family life.

Justice Vladimír Sládeček offered a separate opinion to the judgment as a whole, and Justices Ludvík David, Jaromír Jirsa and Jiří Zemánek on its reasoning.