Finding the best families for children : moving towards inclusive adoption : the legislation and practice to eliminate discrimination on the basis of marital status and sexual orientation

Abstract

States impose a multitude of limitations on prospective adoptive parents. Some are legitimate, as they fulfil the best interests of the child; but others are arbitrary and result from prejudice. Marriage remains a prerogative for receiving the authorisation to adopt in many countries of the Council of Europe. This differential treatment on the basis of marital status results in discrimination towards single individuals and LGBT+ persons, who are still to a large extent denied the right to marry. International law does not recognise the right to parent and this thesis will not call for it, rather it will demand a consistent and unbiased application of the best interests of the child, which legally speaking should already be the core consideration in the adoption process. In recent years there have been positive developments, and they will be used as case studies to understand how other member states can achieve inclusive adoption. In depth analysis revolves around the Netherlands, as a forerunner in the legal and practical implementation, alongside with Ireland, as a state that has recently adopted an inclusive policy, and Slovenia, as a country that is currently shifting. The consideration of the different actors of change is combined with those resisting inclusive adoption. Key words: inclusive adoption, best interests of the child, discrimination, Council of Europe, marital status, sexual orientation, single parents, LGBT+ parents.