Luxembourg family law reform

State Council warns of gay adoption legal challenges

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(CS) Luxembourg's State Council has said that the well-being of a child should be the main concern in all adoption procedures, in an ambiguous review of proposals on adoption by same-sex couples.

Under the last government, the State Council criticised proposals for a new family law, which opened adoption to same-sex couples, however denying them the right to closed adoption. The Council said in June 2013 that both open and closed adoptions need to be available to heterosexual and homosexual couples, while also proposing a more general review of these different types of adoption procedures.

In an open adoption, the biological parents have the possibility to remain in contact with their child after adoption, while in a closed adoption all ties are severed.

Shortly after the review was published, a parliamentary justice commission decided to include the Council's suggestions and opened both types of adoption to heterosexual and same-sex couples in the bill.

Well-being of the child

The Council on Tuesday, however, published another review on the law reform, which the new government hopes to finalise in parliament before the summer, criticising that no analysis for the decision was given and that there was no wider debate about adoption.

The “Conseil d'Etat” said that the “redefinition of marriage and the extension of adoption touch on fundamental questions about the organisation and cohesion of society, meriting an in-depth debate.”

More than anything, the well-being of the child should be the main priority in any adoption procedure, the Council said, explaining that on a case by case basis the suitability of the adoptive parents, their household, environment and other factors need to be assessed in order to ensure that the adoption is in the best interest of the child.

However, the body also added that scientific evidence so far offers no conclusive results on the issue. "On the one hand it has not been proven that the adoption of a child by a homosexual person or same-sex couple is still in the best interest of the child; on the other, neither has it been proven that such an adoption never is in the best interest of the child." it said.

Legal challenges

With this in mind, an official statement issued on Tuesday outlined some legal challenges to opening adoption to same-sex couples.

For example, if a case worker feels that the sexuality of the adoptive parents will have a significant impact on the well-being of the child, it can be made a criteria for the assessment, the Council argued.

However, should an adoption be denied to a same-sex couple or individual because of reasons linked to sexual orientation, the case worker will need to be able to deliver a solid argument in order to avoid discrimination claims, the Council said.

Adoption procedures should “take into account all factors that may affect the assessment of decision-makers, including attitudes and behaviours linked to the sexual orientation of the applicant(s),” it concluded.

For the full review (in French) click here.