Ausgabe 17/2005

Bavarian Family Values State Seeks to Stop Federal Gay Adoption Rights

The state of Bavaria has filed a lawsuit in Germany's Federal Constitutional Court in an effort to prevent homosexual couples from being allowed to adopt children.

By Christine Böhringer and

German singer Patrick Lindner (right): My adopted son is like my own flesh and blood.

German singer Patrick Lindner (right): My adopted son is like my own flesh and blood.

When two Bavarian lesbians set out to start a family, they wanted a sperm donor, not a father. When they describe what the father did to help them have their baby, they call it "friendly assistance." Today their three-year-old daughter calls them "Mama" and "Mami." And under new legislation enacted in Germany at the start of the year, the two hope to finally obtain equal parental rights to their child. "Mami," who stroked her partner's belly during the pregnancy, has filed a petition to adopt the child.

But then another man came into the picture, throwing a wrench into this modern family's chance at happiness. He's Bavarian governor Edmund Stoiber, a member of the conservative Christian Social Union (CSU). His state government is taking a case to the Federal Constitutional Court, Germany's highest court, in an attempt to reverse the new law, which permits homosexual partners to adopt children, as long as they satisfy certain requirements. The Bavarian officials are trying to preserve what they call the "traditional trinity" of the German family -- father, mother, child.

Guido Westerwelle, leader of the opposition Free Democratic Party (FDP), has characterized Stoiber's move as nothing short of a "renaissance of narrow-mindedness." Stoiber, in turn, is convinced it is his duty to rescue the German constitution. For the benefit of the child, he says, the state should prevent people from becoming adoptive parents when their living situation "is incompatible with the guiding principles of the constitution and with the role of mother and father." In other words, adoption should be reserved for married people.

Ironically, single homosexuals are by no means barred from adopting children. German singer Patrick Lindner, for example, is crazy about his adopted son ("Daniel is like my own flesh and blood," he says). He and his partner, Michael Link, raised the boy together until they separated a few weeks ago.

Since January, gays and lesbians in Germany now have an additional option: If one partner already has a child, the other can become that child's adoptive parent. This so-called "stepchild adoption" comes with a host of conditions. Among other things, the first partner must be the child's natural parent, and the child's other natural parent must consent to the adoption. In each individual case, social workers complete a study to ensure that the adoption will not harm the child.

Bavarian Governor Edmund Stoiber: Critics call his plan a "rennaissance of small-mindedness".

Bavarian Governor Edmund Stoiber: Critics call his plan a "rennaissance of small-mindedness".

For these reasons, the new legislation will likely apply to only some of the estimated 10,000 to 30,000 children currently being raised by gay and lesbian partners. One possible qualifying scenario would be a situation in which one partner already has custody of a child from a previous heterosexual relationship; another would be one in which two women use a sperm donor to conceive.

"Even if one were to agree with the CSU's erroneous belief that this type of situation is damaging to a child, the adoption doesn't exactly create more damage," says Volker Beck, leader of the Green Party's parliamentary group in the Bundestag, Germany's lower house of parliament. Indeed, Beck and other supporters of gay and lesbian second-parent adoption are convinced that it can only be beneficial to the child's well-being. After all, it gives the child a second person to exercise custody and, if necessary, be required to provide child support.

But the issue that's at stake for the Bavarian state government is one that's been at the center of a cultural battle for years. Should same-sex partners enjoy the same rights as married couples? The legislation the Bavarians are contesting is the penultimate step on the road toward equal treatment of homosexual couples. The first step came in 2001, when Germany passed legislation giving homosexual partners recognition and rights similar to marriage. The last step, of course, would be to allow gay and lesbian couples to adopt children with no blood relationship to either partner, something the Spanish parliament enacted into law just last Thursday. In Germany, the FDP has been calling for such legislation for some time. But the Bavarian government is staunchly opposed, and in filing its recent lawsuit it is attempting "to put a stop to the red-green (Social Democratic and Green Party) coalition government's attempt to take the next step in allowing full adoption of children by same-sex couples."

One of the proponents of such further-reaching gay and lesbian adoption legislation is Nina Dethloff, Director of the Institute of Family Law at the University of Bonn. Professor Dethloff believes that lawmakers must recognize the reality that "rainbow families" are now part of German society.

But others remain skeptical. Wassilios E. Fthenakis, Director of the Bavarian State Institute of Early Childhood Education, sees "no reason to question the child-rearing abilities of same-sex couples," and he's convinced that homosexuals are neither better nor worse parents than heterosexuals, just different. But Fthenakis, a psychologist, has reservations about granting full adoption rights to gays and lesbians, because the children of homosexual parents are still stigmatized by society.

Once again, it's up the Federal Constitutional Court in Karlsruhe to rule on the matter, even though the fundamental aspects of the issue have already been sufficiently addressed and clarified -- not with the authority of the Federal Constitutional Court, but with the expertise of the Bundestag's academic services department. According to a report it issued last August, stepchild adoption does not constitute "a recognizable violation of Article 6 of the Constitution, which specifically protects families and children."

It's safe to say that this wasn't exactly the kind of conclusion the man who commissioned the report was looking for. He's Peter Gauweiler, a politician and member of the CSU -- the same party seeking the ban on the adoptions.

Translated from the German by Christopher Sultan


© DER SPIEGEL 17/2005
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