Statement on the Ruling by the Constitutional Court of the Republic of Croatia Regarding the Constitutionality of the Foster Care Act

Ruling No. US U-I-144/2019 and another, issued on January 29, 2020, by the Constitutional Court of the Republic of Croatia in connection with the constitutionality of the Foster Care Act, (Narodne novine [Official Gazette of the Republic of Croatia] No. 115/18) have provoked dissent and resentment. Therefore, the Justice and Peace Commission of the Croatian Conference of Bishops, within the framework of its mission, deems it necessary to caution against some of the particulars in connection with this ruling, as well as in the broader context. A negative tone has been directed at the ruling which was adopted by the majority of the constitutional judges, although there are still four so-called separate opinions, which differ from each other in how they interpret the statement and explanation of the main ruling. One opinion is that the disputed act does not violate the prohibition against discrimination because this is not an issue concerning fundamental human rights but rather of social services, and one opinion supported by many valid legal arguments completely contradicts the main ruling. This statement addresses the main ruling and its social implications.

1. An ambiguous ruling. Although the ruling by the Constitutional Court does not declare the Foster Care Act to be inconsistent with the Constitution of the Republic of Croatia, it explicitly creates an obligation for the courts and other public administrative bodies to interpret and apply the legal provisions in a manner that enables same-sex partners to foster children. In doing so, the Constitutional Court has placed itself in the position of a legislator, which we consider inadmissible from the aspect of the tripartite separation of powers and the rule of law. The Justice and Peace Commission, therefore, believes that said ruling is strongly influenced by European currents and the legal tendencies of the neoliberal worldview, which, therefore, are not neutral, and that this is not merely one in a series of such rulings by the Constitutional Court of the Republic of Croatia. The European reality is a reflection of the influence of European supra-institutional courts and bodies, as well as various strategies that alter national outlooks on social reality and national traditions, culture and state sovereignty within national legal frameworks.

2. Foster care is exclusively for the welfare of the child. Foster care is a social service for the accommodation of a child or adult by a foster care provider with his or her family or a single foster care provider. The ruling on the role of a foster parent through the legal definition of a foster family and its constitutional extension to persons in life partnerships (formal or informal) was issued at the great sacrifice of the well-being of the child in the name of some ostensibly shared modern values. In this case, gender equality and the resulting prohibition of discrimination based on sexual orientation have outweighed the greater overriding value of the well-being of the child. The fact is that rulings of such content (of a constitutional court, judicial and administrative character), if not aimed directly, inevitably result in the deconstruction of the existing social awareness that fostering children by same-sex partners is unacceptable and alien. Certainly, it seems that this is the first, and apparently not the last, step toward creating an imposed social acceptance of new family paradigms. We strenuously oppose such a development of the law.

The Justice and Peace Commission is convinced that the majority of our fellow citizens, as evidenced by recent opinion polls, believe that children need a mother and a father, and that no one has a valid argument to rebut this claim. In the Croatian tradition and culture, as understood in the broadest sense, the family is considered to be a community of a mother, a father and their children. Such a view should certainly not be changed or labeled as backward, uncivilized or obsolete. It is part of the Croatian and general human identity.

Pressure from the interested petitioners for constitutional review, with the help of the media and certain non-governmental organizations, is a factor that seems to have influenced the ruling as it was issued. Namely, the Constitutional Court recognized the legitimate objective of the Foster Care Act, which is that the person in need, that is, the beneficiary of the services of foster care, must be the central subject in the entire social welfare system. The court emphasizes that those who provide foster care are in the service of exercising the rights of the beneficiary, in this case, the child, and thus the court also refutes the existence of “the right to be a foster parent.”

However, in the illogical conclusion of the ruling, the Constitutional Court points to alleged discrimination against same-sex partners. Moreover, the Constitutional Court failed to consider that the cited legislation, the Anti-Discrimination Act, at the same time does not consider specific, precisely stated behaviors and special measures to be discrimination, among which it includes the legitimate “protection of the rights and well-being of children, the protection of public morals and favoring marriage, whereby the means used must be appropriate and necessary.” It should be pointed out that the protection of the rights and well-being of children must always transcend the individual interests of adults, in this case the desire of same-sex partners to foster children.

3. The responsibility of the state and competent authorities. The Constitution of the Republic of Croatia, as the supreme legal act, loses force under the impact of international documents. However, it is still present and constitutional provisions should be fully respected, since a constitutional provision is somewhat of a commandment for all of us, while the state is required to provide special care to children who lack suitable parental care (Article 63, Paragraph 5). Thus, the central subjects in such a situation are the children to be cared for and not the adults who could or want to care for them in their own way. It is a failure by the state authorities that too few children are adopted, as they do not sufficiently support the placement of children outside of institutions, guided always by the well-being of the child.

We urge the competent bodies who are obligated to implement the constitutional ruling to evaluate every concrete case involving the care of a child (not only foster care) in accordance with the child’s well-being and by respecting his best interests while respecting the child’s right to express opinions about matters concerning him. No child is an isolated individual but lives and grows up in the world around him. The possible consequences of placing a child under the foster care of a same-sex couple could be far-reaching and irreparable. The well-being of a child is individual and of the highest value within the legal framework. Moreover, the Convention on the Rights of the Child, as the most relevant and important international document, calls on all state bodies to always judge what is in a child’s best interests and warns that the best interests of a child take precedence over the interests of all others (state authorities, institutions and adults). In connection with the placement of a child outside the family, as in the case of foster care, the Convention on the Rights of the Child strongly emphasizes that the choice of placement should ensure “continuity in a child’s upbringing and the child’s … cultural … background” (Article 20, Paragraph 3). We doubt whether the foster care of children by same-sex partners meets the aforementioned criterion.

As shown by experience, the Catholic Church believes that the absence of a mother and father creates obstacles to the normal development of children, who may themselves eventually become involved in same-sex unions. They lack the experience of motherhood or fatherhood. To include children in unions between persons of the same sex through foster care or adoption actually means to perpetrate violence against those children in the sense of exploiting their weakness in order to include them in an environment that does not favor their full human development. Such a practice would certainly be highly immoral and in open contradiction to the principle that was recognized by the Convention on the Rights of the Child, according to which the best interests of the child should be safeguarded in every instance as the weakest and most vulnerable party.

4. There is no “right to become a foster parent.” We note that not a single international contract recognizes the “right to parenthood,” often popularly called “the right to have a child,” and, therefore, no couple (marital, extramarital, same-sex) or individual can claim rights that do not exist. We note that the practice of the European Court for Human Rights does not recognize the “right to become a foster parent” within the framework of the protection of the right to family life (Article 8) or other human rights safeguarded by the Convention for the Protection of Human Rights and Fundamental Freedoms. This convention does not guarantee anyone the right to start a family, adopt a child, or become a child’s guardian or a child’s foster parent, so that the judicature of the Court is coordinated with such a petition.

Among the public, through various media appearances by individuals and some associations, the impression has been created that the Foster Care Act violates the human rights of same-sex couples by not permitting them to foster a child, thereby allegedly discriminating against them and placing them in an inequitable position. However, this is not a matter of their human rights or the violation thereof, because Strasbourg and constitutional jurisprudence permit discrimination (even on the basis of sexual orientation), in connection with the violation of material rights and freedoms on some discriminatory grounds. Since there is no “right to parenthood” or “right to have a child,” there is, therefore, no right for an individual to become a foster parent. Otherwise, it would be a violation of the best interest of the child, as a fundamental principle of the Convention of the Rights of the Child, because a child must not be an object of the pretensions of adults and a means to realize their wishes, either at the normative or implementation level.

We caution that when establishing a foster care relationship, the competent authorities must take into account not only the opinion of the child but also the procedural rights of the parents, who have parental custody and may disagree with the choice of same-sex partners as the foster parents of their child. Not taking into account or circumventing the wishes of parents could bear undesired fruits, that is, lawsuits against the state. However, when the well-being of children is placed above everything else, there are no harmful consequences. Therefore, we appeal to the consciences and reasonable judgments of all the participants in the foster care process, who must not back away for a moment in the protection of the well-being of children.

In Zagreb, March 4, 2020

+ Đuro Hranić

Archbishop of Đakovo-Osijek

President of the Justice and Peace Commission of the Croatian Conference of Bishops