Information regarding the regulatory resolution of the Constitutional Court
(№ 49 of 23 July 2024)
The Constitutional Court considered the appeal of a citizen on verification of compliance with Article 14 of the Constitution of the Republic subparagraph 11) of paragraph 2 of Article 91 of the Code ‘On Marriage (Matrimony) and Family’ (hereinafter – the Code).
According to this provision of the Code, male persons who are not in a registered marriage (matrimony) may not be adoptive parents, except in cases of actual upbringing of a child for at least three years in connection with the death of the mother or deprivation of parental rights.
The author considers this provision of the Code to be discriminatory and contrary to Article 14 of the Constitution, according to which no one may be subjected to any discrimination on the basis of sex. He drew attention to the fact that there was no such prohibition for women who were not married.
Following the results of the verification, the Constitutional Court considered that, the legislator's approach to defining the conditions and establishing restrictions on the right to adoption is consistent with the constitutionally defined objective of the protection of childhood by the State and the obligations assumed to ensure the best interests of children, and is also in line with Article 39 of the Constitution on the possibility for laws to restrict human and civil rights and freedoms for certain purposes.
The restrictions imposed by the legislator on persons wishing to adopt a child must be adequate to legitimate aims and meet the requirements of fairness, proportionality and commensurability, based on the rights and interests of the children. Thus, according to the Code, adoptive parents may not be persons who have an outstanding or unexpunged previous criminal record, who have been declared incapable or have limited legal capacity, who have been deprived or restricted of parental rights and others.
However, limiting a person wishing to adopt a child on the basis of gender is not in line with the principle of equality between men and women in matters of upbringing of children. In this regard, the Constitutional Court drew attention to the provisions of the 1989 Convention on the Rights of the Child and the 1979 Convention on the Elimination of All Forms of Discrimination against Women, which are part of the existing law of Kazakhstan. In addition to ensuring, on a basis of equality of men and women, their equal rights and responsibilities as guardians, trustees, fiduciaries and adoptive parents, these conventions require States parties to assume that the best interests of the child prevail in all cases. This approach is also enshrined in the Law of the Republic of Kazakhstan ‘On State Guarantees of Equal Rights and Equal Opportunities for Men and Women’ of 8 December 2009.
The Constitutional Court stated that the interests of the child, who needs protection of his or her rights and interests, should be taken into account and guided by the constitutionally defined objective of protecting marriage and family, motherhood, fatherhood and childhood. Accordingly, legislative mechanisms should aim to support adoption on equal terms by a man and a woman, especially from among married couples and families, as being more consistent with the best interests and care of the child.
Thus, the imposition of a restriction relating to unequal treatment of persons wishing to adopt children on the basis of their sex is inconsistent with the requirements of Article 14 of the Constitution.
Based on the above, the Constitutional Court recognised subparagraph 11) of paragraph 2 of Article 91 of the Code as inconsistent with the Constitution and instructed the Government to submit to the Mazhilis of Parliament a draft law aimed at improving the legal regulation of the institution of adoption, considering the legal positions of the Constitutional Court set out in the regulatory resolution.