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.”