The notoriously spun-out-of-control European Human Rights Court has yet again issued an astonishing judgment in which it pushes forward, in incremental steps, towards the creation of a “right to a child”.
In the case of A.H. and others v. Russia the Court had to deal with the claims of a group of American applicants whose procedures to adopt children in Russia had come to an abrupt end when the Russian Federation – reacting to the fact that the US now allow same-sex couples to adopt children – suddenly adopted a new law that barred Americans from adopting Russian children. The Court concluded that this abrupt end of the adoption proceedings, which had already reached a fairly advanced stage, constituted a breach of Art. 14 in conjunction with Art. 8 of the European Human Rights Convention, i.e. a “discrimination with regard to the right to respect of the private and family lives” of the applicants.
This finding implies that there is a “Right to Adopt a Child” enshrined somewhere in the Convention, which is of course wrong. The Convention in fact does not include such a right; by consequence, the non-discrimination provision of Art. 14 cannot apply to such a non-existing right. Instead, the UN Convention on the Rights of the Child stipulates that in all matters related to adoption the rights of the child must enjoy precedence over the interest of any other person involved.
The ECtHR judgment is deeply misguided because it is built on false presumptions. It is of course arguable that the applicants might have been suitable adoptive parents, and that it was not necessary for the Russian legislator to totally exclude Americans from adopting Russian children. But it remains that there is not, and cannot be, any “entitlement” for someone to adopt children – neither in the ECHR, nor in any other law. The purpose of an adoption is to find suitable parents for a child, not to find a child for people who want to be parents.
The mere wish to be a parent does not confer any such entitlement.
It remains to be seen whether Russia will request this case, on which the Court has made an obviously wrong ruling, to be referred to a Grand Chamber, or whether it will just ignore it. In any case, the ruling was adopted with a view only to the applicants in the cases at hand, whose efforts to adopt were already fare advanced when they were suddenly frustrated. It does not say that Russia must offer adoption opportunities to everyone.