Dear Mr. Hamacek,
I write to you on behalf of Human Rights Watch. As you may know Human Rights Watch is an independent international non-governmental organization dedicated to defending and promoting fundamental rights, working in over 90 countries around the world with offices in over 20 cities including, in Europe, Amsterdam, Berlin, Brussels, Geneva, London, Moscow, Paris and Zurich.
We write to you concerning Czech law no. 115/2006 Sb., which addresses registered partnerships and allows same-sex partners to enter into registered partnerships. Under Czech law as it stands, registered partnerships are only open to same-sex couples.
We have particular concerns with respect to how the law excludes a registered partner from adopting a child.
Czech law allows only a single person or the married spouse of the parent to adopt a child. Same-sex persons in registered partnerships are excluded from adoption (law no. 89/2012 Sb., section 833 (2), Civil Code) and section 13(2) law no. of 115/2006 Sb (Registered Partner Act) prevents a registered partner from being able to adopt a child.
Thus the paradox of the current law is that a person who enters into a registered partnership with his or her same-sex partner cannot adopt a child, but if he or she were living with the partner in an informal relationship, they would be able to do so.
In the current legal framework, a non-biological parent – the parent’s partner – has no legal parental responsibilities regarding the child, except in the realm of education and the development of the child. In practice, this causes a series of problems not only in the daily life of the family, but also in more difficult situations, such as when there is a separation or when one of the partners dies. Such a situation undermines the interests of the entire family and in particular, such a blanket ban does not allow the best interest of the child to be considered at all, and certainly not to form the guiding consideration in an adoption. Where a child is being cared for by two parents of the same sex, it is better for the child if both the persons whom s/he regards to be her/his parents are not just de facto parents, but also de jure parents.
Through adoption, a non-biological parent is granted legal parental responsibilities with regard to the child, which includes alimony obligations and serving as the child’s legal parent should its biological parent be unable to take care for it. The adoption of the partner’s child brings certainty and stability into families, but above all, into the life of the child.
We are aware that a proposal to change the law was recently submitted to your parliament. This proposal relates to the right of a registered partner to adopt the child of her or his partner, or in other words, a child who already lives with a same-sex couple. This proposal would at least partially eliminate discrimination against same-sex couples, and against the children of same-sex couples. It would create an exception to the current ban on adoptions by registered partners, who would obtain the right to adopt their partners’ children.
Human Rights Watch urges you to support initiatives to take the child’s best interest into account and eliminate discrimination on the basis of sexual orientation.
On March 31, 2010, the Committee of Ministers of the Council of Europe adopted recommendations concerning sexual orientation and gender identity (CM/Rec(2010)5). These recommendations have been directed to all governments of the 47 member states of the Council of Europe, including the Czech government.
Paragraphs 26 and 27 of the Appendix of the Recommendations read as follows:
“26.Taking into account that the child's best interests should be the primary consideration in decisions regarding the parental responsibility for, or guardianship of a child, member states should ensure that such decisions are taken without discrimination based on sexual orientation or gender identity.
27. Taking into account that the child's best interests should be the primary consideration in decisions regarding adoption of a child, member states whose national legislation permits single individuals to adopt children should ensure that
the law is applied without discrimination based on sexual orientation or gender identity.”
The proposal that was recently submitted to your parliament is in line with the above mentioned recommendations.
The Czech Republic is also a party the International Convention on the Rights of the Child (CRC), and the current legal situation is incompatible with the Czech government’s obligations under that treaty.
Article 5 of the CRC prescribes that, “States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community…, legal guardians or other persons legally responsible for the child, to provide, … appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.”
Article 21 states that,” States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians....”
Within the European Union, States have largely been left to decide what legal recognition they will provide to families with same-sex parents and what protections will be granted to children raised in these families. There are many examples of EU member states that have granted adoption rights to a registered partner of a biological parent who are raising the child. I mention Finland, France and the UK as examples, and in all EU countries which recognize same sex marriage, such as the Netherlands and Belgium, the same adoption rights apply to same sex couples in a registered partnership or who are married.
I urge you to support the proposed changes to the Czech same-sex registered partnership law. Doing so would be in the best interest of the children of same-sex parents.
Please let me know if you need more information.
LGBT advocacy director