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Gay adoption: EU court backs French Government ban on homosexual adoption

The European Court of Human Rights has ruled that the French Government was entitled to prevent a gay woman from adopting the child of her partner.

The ruling came in the case of Gas and Dubois v France (2012). It states that the French Government did not breach the women's right to respect for private and family life (under article 8) and their right not to be discriminated against in their enjoyment of a Convention right (under article 14).

The case concerns Ms Valerie Gas and her partner Ms Nathalie Duboise, who are both in their 50s and who have lived together under the French equivalent of a civil partnership since 2002.

Ms Dubois gave birth to a girl in September 2000 using an anonymous sperm donor at a clinic in Belgium. The couple have looked after the girl together ever since. In 2006, Ms Gas applied to adopt the girl so that she could enjoy parental responsibility for the child. The application for adoption was with the express consent of the girl's biological mother and her partner, Ms Dubois.

The application was rejected by the French court which cited article 365 of the French Civil Code. Under article 365 the application for adoption would have transferred the entire parental responsibility from Ms Dubois to Ms Gas. The only exception to article 365 is when a spouse adopts a child, in which case responsibility is shared. French law prohibits homosexual couples from getting married, effectively barring them from the exception to article 365.

The couple argued that French law unfairly discriminates against homosexual couples who cannot marry and enjoy the exception to article 365. However, the French Government denied any discrimination as the rules apply to all unmarried couples, straight or gay. They argued that any change to the law allowing same-sex couples to marry was so fundamental that it should only be effected by the legislature following appropriate democratic debate.

The court referred their decision to a previous judgment which ruled that an article 12 right to marry and start a family does not oblige governments to permit homosexual marriage. That judgment also determined that if governments do permit a more formal legal status for same-sex relationships, such as with a civil partnership, they retain the right to determine the exact nature and extent of the legal recognition.

In voting by six to one to reject the discrimination case of Ms Gas and Ms Dubois, the European Court ruled that the French Government's line on same-sex couples was the same for unmarried straight couples. Unmarried straight couples cannot adopt and enjoy the exception to article 365, and therefore the court ruled that the law was not discriminatory.

Related links:

Read more on the story (The Guardian)

What is the difference between a marriage and a civil partnership? (FindLaw)

Find a family solicitor near you (FindLaw)