(Mar. 30, 2012) On March 15, 2012, the European Court of Human Rights (ECHR) determined that there is no right of a person in a same-sex union to adopt a partner's child under the European Convention for the Protection of Human Rights and Fundamental Freedoms. (CETS No. 005, as in force on June 1, 2010, Council of Europe website; Gas and Dubois v. France, Application No. 25951/07, hearing held Apr. 12, 2011 & decision [in French], both from the ECHR website.)
The decision came in a case involving a woman in France who applied to adopt the child of her civil partner and was turned down. The Court of Appeal of Versailles had ruled that although the two women were jointly raising the child, joint adoption was only permitted for a husband and wife. On February 21, 2007, they filed an application before the Cour de Cassation, France's Supreme Court for civil and criminal matters, but did not pursue the appeal to a conclusion. Their application would have been denied as the court had already ruled on February 20, 2007, against the adoption of a partner's child by the other partner in two cases. In both cases, the court prohibited the partner of the child's natural mother from adopting the child, ruling that such an adoption was contrary to the “highest interest” of the child. The court found that the natural mother would lose her parental rights as a result of the adoption. It cited article 365 of the Civil Code, which provides that “the adopting person alone is invested with regard to the adopted child with all the rights of parental authority (…), unless the adopting person is the spouse of the father or mother of the adopted child.”(C. cass., Petition No 04-1576 and 06-15647, LEGIFRANCE (last visited Mar. 23, 2012).)
France permits both homosexual and heterosexual couples to establish civil unions, but does not have same-sex marriage. (Nicole Atwill, France: Prohibition of Homosexual Marriages Found Constitutional, GLOBAL LEGAL MONITOR (Feb. 2, 2012).)
The couple sought review in the ECHR, arguing that the denial was a violation of the Convention, specifically of article 8, on the right to respect for private and family life, and of article 14, on the prohibition of discrimination. The ECHR stated that the Convention does not require member states to establish same-sex marriage and ruled that denying the adoption was not a form of discrimination against same-sex couples, since members of all civil unions, regardless of sexual orientation, were similarly denied the right to adopt. (Press Release, ECHR 108 (2012) The Refusal to Allow a Woman to Adopt Her Same-Sex Partner's Child Was Not Discriminatory (Mar. 15, 2012), Council of Europe website.)
In addition, the ECHR referred to a 2010 case in which the court stated that member nations did not have to legalize same-sex marriage. (Gray, supra; Schalk and Kopf v. Austria, Application no. 30141/04, Nov. 22, 2010, ECHR website.)
This article was written with some contributions from Constance A. Johnson, Senior Legal Research Analyst at the Law Library.
