Courts have the duty to enable everyone to participate in "the public service of foster care" under equal terms, Croatia's Constitutional Court said in a ruling released to the public on Friday, confirming that same-sex couples are legally entitled to apply for foster care.

The court had been asked to assess whether some articles of the law on foster care are in contradiction to Croatia’s Constitution, filed by several political parties, NGOs, and individuals, who believe that the law in its current form discriminates against same-sex partners.

In some of its provisions, the current law, passed in January 2019, lists everyone eligible to apply for foster parenting, with the list leaving out same-sex partnerships. 

Although the Court did not order a repeal of contested articles, it did agree that the law amounts to discrimination against same-sex partners, which the Court described as “constitutionally unacceptable.”

The Court added that “as a whole, the law has a legitimate goal, to protect the interests and well-being of the socially vulnerable, and that in that respect it does not clash with the constitution” and that the discriminatory effect cannot be eliminated by intervening into the law.

Instead, the Court said, “lower courts and other relevant bodies which decide on citizens’ rights and obligations have the duty to interpret and apply laws in keeping with their legitimate purpose as well as to deliver decisions based on the constitution, laws, and international treaties.”

In this specific case, this means that they must interpret and apply the contested legal provisions in such a way that everyone is able to participate in foster care equally, independent of whether a potential foster parent lives in a formal or informal life partnership, the Court said.

The repeal of the three contentious articles in the foster care law was requested by a number of centre-left and liberal parties and associations, as well as by two men from Zagreb who live in a same-sex partnership after Zagreb’s social care centre had turned down their application to become foster parents, ignoring a binding lower court ruling from last December.