Facts of the case
Pettioner Akkozha was denied an application to register for an adoption by the Semey city government. The city government cited the provision of the Marriage Code, the Article 91 of which prohibits unmarried men from adoption, unless they demonstrate their de facto status as fathers of a child for at least three years. Petitioner filed an appeal with the Constitutional Court alleging deprivation of his constitutional rights.
Question
In forbidding unmarried men—but not women—from being candidates for adoption, does the Subpart 11, Part 2 of Article 91 of the Marriage Code violate Article 14 of the Constitution of Kazakhstan?
Holding
Yes. The court noted that Kazakhstan’s international obligations, as well as its constitutional provisions, oblige the state to act in the best of interests of a child, and that such obligations are heightened with respect to children growing up without their parents. Where a child is under the protection of the state due to loss of parental care, adoption is the most stable means of protecting the interests of a child. The Marriage Code specifies groups of people who are ineligible for adoption. In general, these restrictions pursue the reasonable goals of child protection, and ensuring that children are not placed in worse conditions than prior to adoption. Nonetheless, the court noted that Article 14 forbids discriminatory provisions, where such provisions are not “objective, proportional, and reasonable.” Existing legislation is aimed at promoting the value of family, and prioritizes the elimination of discrimination with respect to child-rearing obligations. In this context, unequal treatment of men and women with respect to the opportunities for adoption is unconstitutional. The court required the government to propose legislation addressing the issues of state procedure for adoption within six months.
Foreign Authorities Cited
Metadata
- Judges: Azimova (Chief); Kydyrbaeva (Rapporteur); Nurmukhanov; Eskendirov; Zhakipbaev; Zhatkanbayeva; Musin; Ongarbaev; Podoprigora; Sarsembaev; Udartsev
- Date: 23 July, 2024
- Link: Akkozha
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