The current state of Russian law
On 3 July 2013 Federal Law No 167-FZ “On the amendments to certain Russian laws on care for orphans and children left without parental care” (hereinafter “the Amending Law”) entered into force.
According to the Explanatory Note (in Russian) the law is designed to “improve the mechanisms of legal, organizational and psychological-pedagogical support of Russian citizens intending to adopt” children and facilitating the procedure for adoption.
The same law amended Article 127 of the Family Code, which now prohibits adoptions by two categories of potential parents:
1) persons of the same sex, who had their marriage registered in any state where homosexual marriages are recognized;
2) unmarried citizens (irrespective of their sexual orientation, family status, etc.) of any state where homosexual marriages are permitted.
Thus, not only married homosexual couples are now precluded from adoption, but certain category of heterosexual citizens as well.
In their fight for the protection of ‘traditional values’ and the child’s best interests, Russian legislators do not seem to be trying to disguise the introduction of this ban. Rather, it was a leitmotif of the draft law, accompanied by the prohibition of “propaganda of non-traditional sexual relationships” (amendments aimed at restriction of freedom of expression and information of the LGBT activists – read more here).
Finally, the attempts to combat “gay terror” led to the following state of Russian law on adoptions (including the newly introduced provisions):
1) joint adoption by homosexual married couples is prohibited by the newly introduced line 13 of §1 of Article 127 of the Family Code;
2) individual adoption by a member of a homosexual married couple is prohibited under the same provision;
3) joint adoption by both homosexual and heterosexual unmarried couples is prohibited under §2 of Article 127 of the Family Code.
4) second-parent adoption by a homosexual person is impossible. Even though there is no explicit prohibition, §3 of Article 137 of the Family code is interpreted as banning such adoptions;
5) individual adoption by an unmarried homosexual person de jure is still possible, if he or she does not have citizenship of a State where same-sex marriages are allowed.
Homosexual persons are often de facto refused to become adoptive parents on the basis of their sexual orientation.
An obvious conclusion can be made on the basis of the foregoing: Russian law has recently become even more restrictive in terms of the rights of persons in same-sex relationships to adopt a child.
Moreover, the Amending Law specifically provides that the new ban on homosexual adoption applies immediately, i.e. to pending adoption procedures; whereas the rest of the amendments apply only prospectively, i.e. to procedures initiated after its entry into force (see §6 of Art. 12 of the Amending Law).
The other problematic aspect of the amendments is the language used. It operates by the collocation “same-sex marriages”. This term is not defined in Russian law, which recognizes as marriage only a union of man and woman (§3 of Art. 1 of the Family Code). Thus, competent authorities will have to determine whether the laws of a foreign State (whose national is going to adopt a child in Russia) permit “same-sex marriages”. In particular, this problem may arise when applying the ban to the second category of “prohibited” adopters: citizens (irrespective of their sexual orientation, family status, etc.) of any state where homosexual marriages are permitted.
There is a risk that authorities not familiar with foreign law may extend the ban to countries where same-sex partnerships and other forms of same-sex union’s registration are allowed. Thus, the new provisions give authorities discretion which may lead to arbitrary refusals and create uncertainty in this sphere, this is why many family law firms start up in the first place, to hopefully place the power in the parents hands once more instead of the governments, reading this about us into why two solicitors from England started Configuring Peters and May… May help understand theirs and others visions for what family is supposed to be about.
The restrictions introduced in Russian law may be criticised from many perspectives. However, such criticism is usually opposed by the actual practice of other states in the world. Indeed, only 15 countries permit homosexual couples to marry and jointly adopt children.
As regards Council of Europe member states, one of which is the Russian Federation, joint and second-parent adoption by same-sex couples is allowed in Belgium, Denmark, Finland, France, Germany, Iceland, the Netherlands, Norway, Spain, Slovenia, Sweden, and the United Kingdom.
Other states, including Russia, do not permit joint or second-parent adoption by same-sex couples.
Even though there is little consensus on this matter among Council of Europe member states, the European Court of Human Rights (hereinafter “the ECtHR”) elaborated an approach determining whether existing regulation is discriminatory or not.
ECtHR case law
The ECtHR has considered several cases dealing with the issue of adoption by homosexual persons (see X and others v. Austria [GC], no. 19010/07, 19 February 2013; Gas and Dubois v. France, no. 25951/07, 15 March 2012; E.B. v. France [GC], no. 43546/02, 22 January 2008; Fretté v. France, no. 36515/97, ECHR 2002-I).
None of the aforementioned cases dealt with a prohibition identical to the one introduced in Russia. Nevertheless, the recent case X and others v. Austria is of particular relevance, since it concerns impossibility of second-parent or step parent adoption by homosexual couples, reserving the right of such adoption only for heterosexual couples. This rule resembles the Russian ban on same-sex joint or second-parent adoptions.
First of all, the ECtHR established that de facto family life existing among applicants falls under the protection of Art. 8 of the Convention (the right to respect for private and family life). It further examined alleged discriminatory treatment and analysed whether impossibility of the second-parent adoption by same-sex couples serves a legitimate aim and is proportionate to that aim. The ECtHR underlined that in cases involving difference in treatment based on sex or sexual orientation, the margin of appreciation is narrow and the proportionality criterion requires proof that the differential treatment is necessary to achieve the legitimate aim pursued (insurance of the interest of a child) (§140). Protection of the family in the traditional sense cannot be the only justification for the ban on adoptions (§§139-141).
Assessing compliance with the aforementioned criteria, the ECtHR took into account inter alia the incoherence of Austrian law, permitting individual adoptions to both homosexual and heterosexual persons, but reserving right for second-parent adoption only to heterosexual couples (§ 144).
Finally the ECtHR found that the Austrian government failed to present convincing reasons for making the distinction between homo-and heterosexual couples in that case, and held that such treatment is incompatible with the Convention.
Bearing in mind that neither Art. 8 of the Convention guarantees a right of adoption, nor does Art. 12 oblige states to recognize same-sex marriages, the approach used in X and others v. Austria may nevertheless be helpful for evaluation of the current Russian regulation. Quite similar to the Austrian law, the Russian Family Code (at least de jure) does not place any additional restrictions on adoptions by unmarried homosexual persons as compared to heterosexual persons, but makes a distinction between married homosexual and heterosexual couples, justifying it by protection of the child’s best interest and the family in the traditional sense.
Other international case-law and documents
The Inter-American system also faced the problem of discrimination. In the recent case of Atala v. Chile concerning parental rights of homosexual persons, the Inter-American Court of Human Rights rejected widespread concerns regarding the well-being of a child raised by same-sex parents. It further held that sexual orientation alone is not relevant when deciding on individual’s suitability as a parent.
Apart from the case law of international human rights bodies, there are numerous documents issued by governmental and non-governmental organisations on the matter. One of the most important is the Recommendation of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010 (CM/Rec(2010)5) which encourages member states where same-sex unions are not recognised to provide them with “legal or other means to address the practical problems related to the social reality in which they live” (§25) and ensure application of national legislation on adoption without discrimination based on sexual orientation (§27).
Summarising comparative and international law research, it can be stated that there is still little consensus among states on substantive questions concerning right of same-sex couples to adopt children. Indeed, even the ECtHR uses very careful and neutral language in the cases involving the issue of adoption, in contrast to its strict approach in other cases involving discrimination against homosexual persons (e.g. violation of freedom of expression, “gay prides”, etc.). Today Russia takes a conservative position in this respect. It is not disputed that under international law no State is currently bound to recognise same-sex marriages or to permit adoption by homosexual couples. However, what states (including Russia) seem to be obliged to do is to avoid discrimination in these relations and adopt laws based on social reality, not on prejudices, fears, or beliefs.
 When “both members of a same-sex couple seek to jointly adopt a child with no prior genetic or legal connection with either partner, so that both partners simultaneously acquire parental rights vis-à-vis the child”, see Written comments of FIDH, ICJ, ILGA-Europe, BAAF, NELFA, and ECSOL submitted on 1 August 2012, p. 1, Joint third-party comments in X and others v. Austria [GC], no. 19010/07, 19 February 2013.
 When “a lesbian or gay individual seeks to adopt as an unmarried individual”, Ibid.
 When “one member of a same-sex couple, consisting of two women or two men living together as partners, seeks to adopt the child of the other partner, so that both partners have parental rights vis-à-vis the child”, Ibid.
 See p. 321 of the Research on “Situation of lesbians, gays, bisexuals, transgender people in Russia in 2011-2012”, available in Russian at: http://lgbtnet.ru/sites/default/files/doklad-monitoring.pdf.