By its Decision No. 392/2026, the Plenary of the Greek Council of State held that the recognition, under Law 5089/2024, of the right of persons of the same sex to enter into a civil marriage, as well as the right of married same-sex couples to adopt a minor child, does not contravene Article 21(1) of the Greek Constitution.
This decision is of particular legal importance, not only because it confirms that the relevant legislative provisions do not exceed constitutional limits, but above all because it addresses, expressly and specifically, the issue of the adoption of a minor child by married same-sex couples. The Court accepted that the recognition of this right constitutes, according to the explanatory memorandum of the law, a consequence of the recognition of the right of same-sex persons to enter into civil marriage and that it must be examined within the already existing framework of safeguards governing the adoption process.
The Core Focus of the Decision: Adoption of a Minor Child
The central point of the decision is that the Council of State did not approach adoption as an abstract or theoretical issue, but as a legal institution already governed by specific safeguards designed to protect the child. In its reasoning, the Court underlined that the adoption process includes an investigation by the competent social service in two distinct stages, as well as oral proceedings before the competent court, precisely in order to assess, in each individual case, the best interests of the minor child.
On the basis of these considerations, the Plenary held that the recognition of the right of married same-sex couples to adopt a minor child, under the same conditions and procedure already established and applicable to adoption by married opposite-sex couples, does not infringe the constitutional protection of childhood or the principle of the best interests of the child.
Of particular significance is the fact that the Court accepted that the child’s interests are examined and determined by the competent authorities and, ultimately, by the court in each specific adoption case, without prospective adoptive parents being excluded in advance on the grounds of sex or sexual orientation.
The Council of State further noted that procedural safeguards are also provided by Article 11(2) of Law 5089/2024 in relation to adoptions that have already taken place abroad by same-sex couples.
What the Council of State Held Regarding the Best Interests of the Child
The decision places particular emphasis on the principle of the best interests of the child. The Plenary did not accept that this principle is protected by means of a general and prior exclusion of an entire category of prospective adoptive parents. On the contrary, it held that what is decisive is the effective operation of the safeguards provided by law and the individualized assessment of each case.
Within the same framework, the Court stated that there is no constitutional requirement for adoption to replicate the biological relationship of a child with two opposite-sex parents, so that the adopted child must necessarily be raised by a mother and a father. It also recalled that Greek law has long permitted adoption by a single person, whether married or unmarried, while contemporary social reality includes different family structures.
The Decision Concerned Not Only Marriage, but Also Adoption
In public discussion, attention is often focused solely on the issue of civil marriage between persons of the same sex. However, this decision is particularly important because the Plenary did not confine itself to the constitutional assessment of marriage alone, but also addressed, independently, the issue of the adoption of a minor child.
More specifically, it accepted that the recognition, in favour of married same-sex couples, of the right to jointly adopt a minor child, as well as the right of one spouse to adopt the lawful child, biological or adopted, of the other spouse, constitutes a consequence of the recognition of the right of persons of the same sex to marry.
Accordingly, the Council of State held that the legislature was entitled to recognise this right in favour of married same-sex couples without violating the constitutional protection of the family, childhood, and equality, precisely because the exercise of that right is integrated into the already existing framework of review and judicial scrutiny applicable to every adoption.
The Legislative Framework of Law 5089/2024
Law 5089/2024 introduced the possibility of civil marriage for persons of the same sex. Within that framework, it also regulated issues connected with parenthood, including the recognition of the right to jointly adopt a minor child, as well as the right of one spouse to adopt the lawful child, biological or adopted, of the other spouse.
Decision No. 392/2026 therefore confirms that these legislative provisions do not contravene the Constitution and that, according to the majority of the Court, they remain within the limits set by the constitutional order.
The Issue of Adverse Discrimination
The Plenary also held that, in light of the above, no issue of adverse discrimination arises against children who are to be adopted by married same-sex couples, in comparison with children raised by two opposite-sex parents, provided that the competent court has first determined that, in the specific case, the best interests of the minor are served.
This finding is directly linked to the core position of the decision, namely that what matters is not the prior categorisation of prospective adoptive parents, but the individualized determination of the child’s interests on the basis of the safeguards established by law.
There Was Also a Dissenting Opinion
It should nevertheless be noted that the decision was not unanimous. A dissenting opinion was recorded, which argued, among other things, that with regard to the issue of adoption it had not been shown that the legislature had taken into account specific and well-substantiated long-term studies concerning the long-term effects on children living in a family formed by same-sex persons.
However, the binding ruling of the Plenary is that of the majority, according to which the contested legislative provisions do not contravene the Constitution.
Conclusion
Council of State Plenary Decision No. 392/2026 constitutes an important development in Greek family law. Its essential point is that Greece’s highest administrative court held that the recognition, under Law 5089/2024, of the right of married same-sex couples to adopt a minor child does not conflict with the Constitution, when applied within the framework of the safeguards already in force, with the best interests of the child as the guiding criterion and subject to review by the competent authorities and the court in each specific case.
The importance of the decision lies precisely in the fact that it clarifies, at the level of constitutional review, that the legislature was entitled to recognise this right without violating the Constitution, under the same conditions and procedure already applicable to married opposite-sex couples.
This article is provided for informational purposes only, does not constitute legal advice, and reflects the content of the relevant judicial ruling and the applicable legislative framework. Each case requires an individualized assessment based on its specific factual circumstances and the applicable legal provisions. Our law firm had no involvement whatsoever in the specific proceedings or in the issuance of the relevant decision. For tailored legal advice, you may contact our office.
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