Monday, April 18, 2011

European court hears same-sex adoption case

An appeal by a lesbian couple against the refusal of the French courts to allow the partner of a mother of a donor conceived child to be an adoptive parent to the child was heard by the European Court of Human Rights (EHCR).  

The case could have serious implications for adoption laws in Member States of the Council of Europe.

The couple, Valérie Gas and Nathalie Dubois, argue the refusal of the French courts to grant the adoption infringed upon their right to respect for their private and family life and was discriminatory, in breach of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for their private and family life) of the European Convention on Human Rights.

However, the French government contends that unmarried opposite-sex couples living in a civil partnership under French law would also be refused the right to adopt.  

They argue that the Ms Gas is not being discriminated against on the basis of her sexual orientation.

In September 2000, the biological mother, Nathalie Dubois, gave birth in France to a daughter, A, who had been conceived in Belgium by means of medically assisted procreation with an anonymous donor. 

Belgian law prevents donor-conceived children from establishing a parental tie with the father.

In April 2002 Ms Gas and Ms Dubois entered into a civil partnership agreement.  

On 3 March 2006 Ms Gas applied to Nanterre Tribunal de Grande Instance for an adoption order in respect of her partner’s daughter.

However, it refused the application on the grounds that the adoption would have legal implications that ran counter to the applicants’ intentions and the child’s best interests by transferring parental authority to the adoptive parent and hence depriving the biological mother of her rights in respect of the child.  

The couple argue that the French courts are infringing on their rights in this regard.

However, the French Government argues that the case law of the ECHR accepts that marriage confers a particular status on those who entered into it, and that there were legitimate reasons for not granting the couple in question the right to marry, and also for the special status conferred on married couples.

The French Government also submitted that the difference in treatment between married couples and civil partners was justified by a legitimate aim, namely the protection of the family based on the bonds of marriage.

It stressed that the decision had been based on the child’s interests and not on the first applicant’s sexual orientation.  

Had the adoption order been granted the biological mother would have lost parental responsibility in relation to her child; this could in no circumstances be considered to be in the child’s interest, it said.

The European Centre for Law and Justice (ECLJ), a pro-marriage group, says that the Convention does not give same-sex couples the right to marry or the right to adopt or to procreate.

“Without such rights, there cannot be any direct discrimination in this case,” Dr Gregor Puppinck, Director of the ECLJ, said.

Dr Puppinck added that Member States of the Council of Europe “enjoy a large margin of appreciation in the matter of family law and filiations when dealing with complex legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States.”