Can a homosexual person adopt his or her partner’s child? The case of Gas and Dubois v France.

29 March 2012 by

Gas and Dubois v France (2012) (application no 25951/07).  Read judgment (in French).

The French government did not violate articles 8 (right to respect for private and family life) and 14 ECHR (right not to be discriminated against in one’s enjoyment of Convention rights and freedoms) in not allowing one partner in a homosexual couple to adopt the child of the other.  And the Daily Mail goes off on another frolic of its own.

Ms Valerie Gas and Ms Nathalie Dubois, now in their 50s, lived together as a lesbian couple, obtaining the French equivalent of a civil partnership (the pacte civil de solidarité, or PACS) in 2002.  Ms Dubois, through artificial insemination in Belgium using an anonymous sperm donor, gave birth to a girl in September 2000.  Together, they took care of the child and, in 2006 , Ms Gas, applied to adopt the girl with the consent of her partner, Ms Dubois.  The application was rejected by the French courts by virtue of article 365 of the French Civil Code.  Under article 365, the adoption would have transferred Ms Dubois’s parental authority to Ms Gas, leaving Ms Dubois with no parental authority over her own biological daughter.  Article 365’s only exception is when a spouse adopts the child, in which case parental authority can be shared between the spouses.  Under French law, however, Ms Gas and Dubois could not qualify as spouses since homosexual couples cannot get married (article 144 of the Civil Code).   The French tribunal thus rejected the request for adoption on the grounds that it would have legal consequences contrary to the intentions of the applicants and, by depriving the biological mother of her legal rights over the child, to the interests of the child.

And so the aggrieved applicants went to the European Court of Human Rights, invoking Article 8 (right to respect for his private and family life) and Article 14 ECHR (right not to be discriminated against in one’s enjoyment of Convention rights and freedoms).

The French government argued that Article 8 was not engaged since it did not guarantee a right to adopt or a right to parentage.  With Article 8 removed, the government argued, the Article 14 claim should also collapse since Article 14 has no independent existence.  It is parasitic on other Convention rights.

The European Court, however, held that the issue touched upon family life and that sexual orientation fell within the protective scope of Article 8.

Ms Gas and Dubois’s argued that the ‘unintended legal consequences’ argument affected only same-sex couples since, unlike heterosexual couples, they could not get married and rely on the exception in article 365 of the Civil Code.  They asserted discrimination on the basis of sexual orientation.  Unmarried heterosexuals could always get married to benefit from the article 365 exception, but not so their homosexual counterparts.  The applicants called for legislative change to end this discrimination.

The French government denied that article 365 was discriminatory:  it applies to all unmarried couples.  The ‘spouse’ exception was introduced to protect the interests of the child.  The French government’s view was that marriage forms a more stable basis for a couple than any other type of union.  When a marriage breaks down, for example, divorce proceedings are automatically engaged.  With the PACS, matters are far more informal, the process and consequences less onerous.  This explains the married-unmarried distinction for the purposes of adoption.  The government also denied indirect discrimination, for family life can be enjoyed without marriage and without parenthood.  And if a change in the law should be needed, argued the government, then this was a matter for the legislature to consider, following a democratic debate.

A number of third party groups, including the International Federation for Human Rights, the British Association for Adoption and Fostering, and LGBT associations, made a common submission to the Court.  They pointed out that 10 European member states, and many other jurisdictions, allow adoption by the second parent.  They submitted that, contrary to the government’s view, granting parental authority to both parents could enhance the well-being of children and better protect their interests.  This view was echoed by Judge Villiger in his impassioned, child-centred dissenting judgment.

So what did the European Court conclude?  First, it referred to its decision in Schalk and Kopf v Austria, n. 30141/04):  Article 12 (right to marry and establish a family) does not impose an obligation to allow homosexual couples to marry, and the Article 8-Article 14 combination cannot show otherwise.  When member states do offer homosexual couples a form of legal recognition (such as civil partnerships or the French PACS), they enjoy a margin of appreciation in determining the exact nature of this recognition.

The European Court, by six votes to one, rejected the discrimination argument of Ms Gas and Ms Dubois.  The Court supported the view that marriage conferred a special status on a couple and was replete with social, personal and legal consequences.  The Court did not consider the applicant’s situation as legally analogous to that of a married couple who wished to adopt.  A better analogy, said the Court, was that of unmarried heterosexual couples wishing to adopt, and since they too could not adopt and benefit from the article 365 spousal exception, there was no discrimination on the basis of sexual orientation.

Ah, but what about the applicant’s argument based on indirect discrimination:  unlike unmarried heterosexual couples, they could get not married.  The Court simply – and somewhat disappointingly – referred back to earlier paragraphs in the judgment about Article 12 ECHR not obliging member states to allow homosexual couples to marry, the special status of marriage, and the non-analogous legal situation with married couples (paragraphs 66 to 68).

The Daily Mail’s interpretation

That, in essence, is the Court’s judgment.  It is puzzling, therefore, to read an account of the case in the Daily Mail of 20 March 2012.  The article, dramatically entitled “Gay marriage is not a ‘human right’: European ruling torpedoes Coalition stance”, notes:

The ruling also says that if gay couples are allowed to marry, any church that offers weddings will be guilty of discrimination if it declines to marry same-sex couples.  It means that if MPs legislate for same-sex marriage, the Coalition’s promise that churches will not be compelled to conduct the weddings will be worthless.”

The judgment says no such thing.  There is no mention of churches, or of the wider legal implications of the judgment on marriage and discrimination.  It is perfectly acceptable to use a judgment as a ‘peg’ for a more topical discussion, but this appears to be pure fabrication.

In Capability and Well-being, Amyarta Sen warned against ironing out the complexities and ambiguities of an idea: ‘if an underlying idea has an essential ambiguity, a precise formulation of that idea must try to capture that ambiguity rather than hide or eliminate it.’  There is a great danger, in writing newspaper articles (and short blog posts) on human rights cases, of over simplifying matters, of creating a false impression that the issue is straightforward.  The case of Gas and Dubois v France is a good illustration of a simple set of facts – a homosexual woman wishing to adopt her partner’s child – hiding a plenitude of legal, social, political and moral issues.  Of this, the European Court was acutely aware and accordingly adopted a cautious approach.

Daniel Sokol is a pupil barrister a 1COR and Honorary Senior Lecturer in Medical Ethics at Imperial College London.

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  1. Having read the ECtHR press release – I’m afraid that reading the full judgement in French is rather beyond my linguistic capabilities – I think it’s very difficult to generalise from this ruling to the UK as it primarily deals with aspects of French adoption law for which there are no real parallels in English Law.

    The significance of Schalk & Kopf v Austria is that it clearly sets out the court’s position on same-sex marriage, which is simply that it is not minded to impose its recognition on countries that are are unwilling to take that step by creating a Europe-wide precedent but equally it it will present no barriers to those countries that are willing to make such a move.

    Its a compromise position but, at least for the time being, a sensible one for the court to take in cases of this nature.

  2. ObiterJ says:

    A well written and elegant post – if I may say so.

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