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The Grand Chamber of the European Court of Human Rights in X and Others v Austria (App No 19010/07; 19 February 2013), was asked to consider whether two women living in a stable same-sex relationship should have access to Austria's second-parent adoption procedure on equal footing with unmarried heterosexual couples. The Court answered in the affirmative. While the Court should be applauded for its approach, this judgment is a reminder that even if the scope of Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘the Convention') is very broad, it is still very far from comprising all family-forms. Adoption, for instance, has never been proclaimed as a fundamental right. Nor has same-sex marriage. Surrogacy (or recognition of parenthood in the context of surrogacy) may also fall within this list.
Yet the significance of this judgment lies not so much in its but more the reasoning of the majority and the cautionary opinion of the dissenting judges who challenge the majority for going too far in its evolutive interpretation of the Convention. In some quarters, evolutive interpretation is seen as a symbol of activism or, worse, of judicial imperialism. For the dissenting judges (and others) the question is whether the Court should not, in certain cases, show more ‘judicial self-restraint'. What, then, are the limits of the Court's evolutive interpretative approach? Do they lie in the European consensus? Or does evolutive interpretation exist by tacit consent? For those of us who believe in the Convention and the Court, these issues are of great importance.
The full version of this article appears in the October 2013 issue of International Family Law.
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