September 23, 2010
The Court has recently declared admissible Gas and Dubois v. France, another major case concerning adoption by homosexuals. Earlier in E.B. v. France, the Court dealt with adoption by a single homosexual and addressed allegations of direct discrimination. Gas and Dubois v. France now confronts the Court with further challenges: the adoption of a same-sex partner’s child and claims of indirect discrimination.
Valérie Gas and Nathalie Dubois are same-sex civil partners who have cohabited since 1989 and entered into a civil partnership agreement in 2002. In 2000, Ms. Dubois gave birth to a child conceived by means of medically-assisted procreation with an anonymous donor. Ms. Gas applied for a simple adoption order but the application was rejected. For the French Government, the refusal was not motivated by the applicant’s sexual orientation but by the child’s best interest. Under French law, a simple adoption order in favor of Valérie Gas would have resulted in the child’s biological mother losing parental authority. For the applicants, such loss of parental authority if a simple adoption order was granted to her partner was discriminatory since opposite-sex partners could avoid losing parental authority by getting married, an option not legally available in France to same-sex partners.
According to Article 365 of the French Civil Code, simple adoption results in the transfer of parental authority from the biological parent to the adoptive one. The provision foresees an exception. Where the adoptee is the child of a spouse, parental authority can be exercised jointly. Since France does not recognize same-sex marriage, same-sex couples can never fall under this exception. As the applicants point out, a child raised by a same-sex couple could never be adopted by her parent’s partner, even though they have lived together for many years.
This is precisely the situation in Gas and Dubois v. France. Ms. Gas and Ms. Dubois have lived together for over twenty years (in a civil partnership since 2002) and one of them gave birth to a child they both wished and in whose upbringing they have both been actively involved. This was acknowledged by the French courts which considered demonstrated that the applicants have been jointly involved in the child’s upbringing, caring for and displaying affection towards her.
There is therefore no doubt this is a de facto family seeking to become a family “in the eyes of the law” but facing however impossibility with obvious detrimental implications for the child. In the eyes of the child, as the third party interveners emphasize, the applicants are already her parents. The third party intervention questions: how could it not be in the best interest of a child born through donor insemination to an unmarried same-sex couple to have two legal parents instead of one? A major case now awaits decision from the Court. It remains to be seen whether such decision will bring a major victory for homosexuals on the way toward full recognition of equal legal status.