Adoption; co-adoption – prior review of the constitutionality of a referendum
Citizens’ right to participate;
Principle of the homogeneity and unicity of the subject matter of a referendum; Dilemmatic principle;
RULING No. 176/14
19 of February of 2014
A draft referendum on the possibility of co-adoption by a same-sex spouse or cohabiting partner and adoption by married or cohabiting same-sex couples, which was approved by Resolution of the Assembly of the Republic, did not fulfil the requisites imposed by the Constitution and the Organic Law governing the Referendum Regime (LORR). Nor did it respect the right of participation pertaining to those citizens who are properly registered as voters and reside abroad, who must be invited to participate in referenda on matters that specifically concern them.
The Court consequently held that the draft referendum proposed in Resolution of the Assembly of the Republic no. 6-A/2014 failed to comply with either the Constitution or the ordinary law.
The Constitution requires the President of the Republic to request a prior review of the constitutionality and legality of draft referenda that are submitted to him/her. The Organic Law governing the Referendum Regime (LORR) in turn says that the object of such requests must include a review of the requisites regarding the universe of voters to whom the referendum is to be submitted.
A Resolution of the Assembly of the Republic proposed holding a referendum in which citizens registered to vote in Portuguese territory would be called on to answer the following questions:
1 — “Do you agree that a same-sex spouse or cohabiting partner should be able to adopt the child of his/her spouse or cohabiting partner?
2 — Do you agree with adoption by same-sex married or cohabiting couples?”
The Constitutional Court noted that that the legal ability to adopt of same-sex couples, be they married or cohabiting, had never been recognised in Portuguese law.
The legal regime governing adoption was itself only introduced as a systematised normative complex in the Portuguese legal system with the entry into force of the 1966 Civil Code.
The (social or individualist) function of the ‘institute’ of adoption has not been constant over time – a fact that reflects the difficulties of ensuring the necessary balance between minors’ rights and the right of potential parents to adopt. Initially seen as satisfying an interest pertaining to the latter, today adoption must be guided by the “superior interest of the child”. The need to uphold the superior interest of the adoptee child is considered to justify the imposition of legal restrictions on rights, freedoms and guarantees pertaining to the adopting parents. Be that as it may, an adoptable minor’s physical, intellectual and moral development must be placed in the hands of someone who is willing and able to satisfy those needs, and above all someone who has the capacity to establish and maintain a deep affective relationship with him/her.
The changes that have been made in the adoption regime over time have tended to facilitate the formation of an adoptive relationship by dispensing with requisites that had initially been imposed, or making them more flexible. These included the amount of time the adopting couple had been married, their minimum age, and that they could not have biological children of their own.
The legal notion of ‘family’ has itself also evolved, with legal effects now attributed to cohabitation. Where adoption is concerned, it is particularly now possible for cohabiting different-sex couples to adopt under conditions that are analogous to those required of married couples.
In 2003 a broad legal reform raised the principle of the superior interest of the child to the status of the ultimate goal of the ‘institute’ of adoption and reinforced the idea that every stage of the adoption process should be guided by this primary purpose.
2010 saw the passage of a Law that permitted same-sex civil marriage, but also made it legally inadmissible for such married couples to adopt and specifically said that no legal provision regarding adoption could be interpreted to the contrary.
Those who argue in favour of adoption by single-sex parents highlight the fact that this legal path differed from that taken in the majority of countries which have recognised homosexual marriage. In most cases outside Portugal, this form of adoption was either recognised at the same time as same-sex marriage, or even before it. They also emphasise that single-parent adoption is permitted regardless of the adopting person’s sexual orientation, but adoption by a same-sex couple is not.
It is also argued that in cases in which one of the members of a same-sex married or cohabiting couple is already the child’s parent, it is beneficial for the child to allow a court to permit co-adoption by the other member of the couple (on condition that the legal parent-child relationship with the second progenitor is not already established).
The Court noted that the objective constitutional and ordinary-law preconditions for the actual process of passing a Resolution to hold a referendum in this case were met.
It also took the view that the constitutional requirement that the subject of the referendum be of important national interest was also fulfilled, and that the other material constitutional limits were respected.
The Constitution enshrines the principle that a particular referendum can only address a single, homogeneous subject. This requirement that referenda be monothematic is designed to avoid confusion about both the object of the consultation and the voters’ answers. This principle of the homogeneity and unicity of the subject matter refers to the object of the referendum and not the actual questions. However, when there is more than one of the latter – a possibility for which the Constitution and the ordinary law make express provision – this principle becomes important to the way in which they are formulated.
In the present case, co-adoption and joint adoption are different concepts. The former consists of the possibility for one member of a married or cohabiting couple (currently they must be of different sexes) to adopt the other member’s biological or adopted child (adoption by one person).
Joint adoption entails the establishment of parent-child relationships between a couple and a child, with the issue at stake being whether or not to make this possible for same-sex couples.
The Court took the view that the fact that the draft referendum addressed both co-adoption and joint adoption did not in itself mean that its object did not possess homogeneity and unicity.
There was a substantial nexus between the two questions: seen from the perspective of the adopting parent(s), both address issues regarding the capacity of members of same-sex married or cohabiting couples to adopt; from that of the adoptee child, both questions ask whether, from a filiation point of view, adopted children can have two mothers or two fathers.
However, the Court said that the draft referendum did simultaneously formulate two questions that were different because they addressed different situations and interests, both from the point of view of the adopting parents and from that of the adoptees, and that this could affect voters’ ability to decide.
In the case before it the Court said the questions had to be drafted in such a way as to enable every citizen to understand that the sole purpose of the consultation was to determine whether it should be possible for members of same-sex couples to adopt, and the questions had to obey a dilemmatic principle – i.e. they must be written in such a way as to only permit a “yes” or “no” answer.
Both dimensions of this requisite were indeed fulfilled: (i) both questions were formulated in a way that would allow citizens to be aware that they were making a choice based on clear pair of alternatives (dilemmatic principle); (ii) and both formulations were binary and thus permitted a “yes” or “no” answer.
Compliance with the requirements of objectivity, clarity and precision must be gauged both for each referendum question individually, and for all the questions taken as a whole; their formulation must express the mutual coherence derived from the logical principle that contradiction between them is prohibited.
The Court pointed out that if the voters’ answers to either of the questions were both affirmative (“yes”) and binding (for this to be the case, the number of actual voters must exceed half the total number of registered voters), the existence of two fatherhoods and two motherhoods would be recognised in Portuguese law for the first time, thereby changing the current paradigm for ‘parenthood’.
This proposed consultation in the form of a referendum was designed to get citizens to give their opinion on whether the law should admit or deny the possibility for minors to be adopted by same-sex family communities – in the case of one question, successively, and in that of the other, jointly. However, the Court said that the different value judgements it is possible to make in relation to each of these situations justified the existence of autonomous questions.
Turning to the interests of the potential adoptive parents, the Court said that both the issue of the prohibition on discrimination based on sexual orientation, and that of the right to form a family, could be at stake in this case; while where the interests of the potential adoptees were concerned, it was possible to invoke the right of children to be protected with a view to their full development, their personal identity and the development of their personality, the right to be integrated into a family, and each child’s emotional and axiological balance.
However, the value judgement underlying each of the two questions differed depending on the parental and family situation of the potential adoptee at the moment of the adoption: the first question presupposes that the child already lives in a family with a homosexual parent; in the situation covered by the second question, this is not the case.
Despite the fact that the text of the questions primarily expressed the interest of same-sex couples, making the general question of whether or not there are material grounds for discriminating against them the object of public discussion, voters in the referendum would also be voting on the superior interest of potential adoptees – i.e. on the issue of whether it is justified from the child’s point of view to recognise two fatherhoods or two motherhoods.
The Court considered that the simultaneous formulation of the two questions could lead to a lack of understanding on the part of voters of the values that are manifest in each of the questions. The first question involves the issue of the adoption by one spouse or cohabiting partner of the existing child of the other one, when both spouses/partners are of the same sex. This situation is about establishing legal bonds between a child and a person with whom he/she already has a parental relationship; and it is about establishing a legal bond between two people (the child and the thus-far non-legal-parent member of the couple), each of whom already has a legal bond with a third person (the existing father/mother, and the latter’s same-sex spouse/partner).
In such cases the adoption serves to recognise that a relationship which was already being established de facto between the child and the aspiring adoptive parent has legal effects. The European Court of Human Rights (ECHR) has used the fact that an adoptee is already incorporated in practice into a family based around a same-sex couple as grounds for legitimating adoption by that couple. In doing so it has used the “criterion of the effective existence of interpersonal bonds” to gauge whether a “family life” exists.
Given that the superior interest of the child is an imperative that requires the adoptee to be ensured an appropriate family insertion, the first question means that voters would have to decide whether the adoption of children who are already members of a family with two fathers or two mothers damages that interest or not.
The second question asked voters about the adoption of a child by two persons of the same sex, neither of whom is already the child’s legal parent.
This difference meant that it was possible to accept that the legal importance of the adoptee’s interests was different in this case. Voters could attach a different value to the existence of a real, consummated situation in which the child is already incorporated into a same-sex family (be it conjugal or de facto), compared to situations in which such a life experience had never existed. Quite apart from anything else, the “right to form a family” takes on a different shape here, inasmuch as neither the Portuguese Constitution nor the European Convention on Human Rights recognise a “right to adopt” derived from the right to form a family.
At stake in the first of the two questions was the child’s interest in establishing a legal relationship with one of his/her carers; while in the second, the primary issue was the interests of same-sex couples in being able to gain access to the possibility of adopting children.
The first question implies that a de facto family has already been formed, whereas the second addresses the formation of a new family from scratch. The second question is therefore not about the minor’s interest in the recognition of a legal relationship with a concrete family, but rather a couple’s desire to adopt, ex novo, a child who to begin with probably has no relationship with them whatsoever, even though it may be in his/her interest to be adopted in general.
Given that the ‘institute’ of adoption seeks first and foremost to satisfy the interests of the child and not of the potential adoptive parents, voters might not consider that the value judgements they were being called on to make with regard to the two questions were different. If, as the ECHR emphasises, the purpose of adoption is to “give a family to a child and not a child to a family”, voters would not only face the question of equality for homosexual couples, but also necessarily whether it is in a child’s interest to live in a family with same-sex parents.
These value judgements, which are inherent in the two questions, are different and could generate ambiguity. The answer to the second question could contaminate the answer to the first, and vice versa, in such a way that if the questions were to be posed separately, voters might give different answers to the ones they would give in a combined consultation, because in the separate referenda voters would be aware that the value judgements involved in each question were also different.
The Court thus held that combining these two questions in a single referendum was capable of undermining respect for the need for questions to be precise.
It also pointed out that doing so could leave the legislator itself in a dilemmatic situation. According to the Constitutional Court’s own jurisprudence, when there is more than one question in a referendum, they must permit a univocal set of answers or a univocal overall answer that gives the legislator precise indications as to how it should act. This was not the case with these two questions. If voters were to say “no” to the first question and “yes” to the second, they would leave the legislator in a position in which it would be forced to permit the establishment of parental relations with regard to some same-sex couples and not others. This would be an inadmissible situation, given the need for normative unity. A result of this kind would be discriminatory, regardless of the value judgements voters might make in relation to adoption by same-sex couples.
The Court also found that the draft referendum failed to fulfil the constitutional requirement that citizens who reside abroad and are properly registered to vote must be invited to do so when the subject of the referendum specifically concerns them too. This was because the formation of adoptive filiation is subject to the ‘personal law’ of the adopting parent; and the constitutional rights and principles that can be used as arguments for accepting or rejecting the possibility of co-adoption and/or joint adoption by same-sex married or cohabiting couples constitute a material domain that is of interest to Portuguese citizens living abroad.
As such, the Court consequently held that the draft referendum set out in the Resolution of the Assembly of the Republic before it would be both unconstitutional and in breach of the ordinary law.
The Ruling was the object of four opinions, whose authors either dissented from it, or added to the grounds for concurring with it.
Rulings nos. 1172/96 (20-11-1996); and 29/13 (15-01-2013).