Thursday, April 21, 2011

European Court of Human Rights hears appeal of lesbian couple denied second-parent adoption in France

A French lesbian couple, denied a second-parent adoption of the daughter born to one of them using donor insemination, has taken their case to the European Court of Human Rights (ECHR). The couple, Nathalie Dubois and Valerie Gas, began living together in 1989, and their daughter, Alexandra, was born in 2000. Alexandra was conceived in Belgium because assisted reproduction is not available to a lesbian couple in France. The hearing before the ECHR last week is available (with simultaneous English translation) on line.

The European Convention on Human Rights prohibits discrimination under Article 8 and protects family life under Article 14. The two articles together have been the basis for previous challenges. In 2008, the ECHR, in E.B. v. France, ruled in favor of a single lesbian who had been denied the ability to adopt because of her sexual orientation.

Arguing on behalf of the couple, attorney Caroline Mecary presented numerous legal consequences denied Alexandra because Valerie could not adopt her. She contrasted Alexandra's position to that which would be available had her mother had a male, rather than a female, partner. Under French law, an unmarried different-sex couple can both be the parents of a child born to the woman using donor insemination. (European countries, in general, are more likely than the US to treat unmarried and married heterosexual couples equally). Furthermore, French courts do recognize second-parent adoptions granted in other countries.

The attorney for the French government argued that the European Convention on Human Rights does not grant a right to adopt. She tried to reassure the court that Alexandra would be protected under various other French laws, including the fact that Valerie will be allowed to adopt once Alexandra becomes an adult, as French law allows adult adoption that adds a parent for a child.

She argued for distinguishing the E.B. ruling, but then never said how it could be distinguished. She also argued that marriage is the most protective environment for raising children. Lest we think that groups opposing gay and lesbian parenting exist only in the United States, an organization called the European Centre for Law and Justice, affiliated with its American counterpart, commented in a press release that this case is "the latest in a long series of attempts to attack the European common heritage, by introducing new anthropological, moral and social views." Some of France's arguments track precisely arguments here against same-sex marriage, notwithstanding the fact that this case concerns parentage not marriage.

Rob Wintemute, law professor at King's College, University of London, presented argument on behalf of the European region of International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) and other organizations. He presented the ECHR information on the many countries/states that do permit a child to have two parents of the same sex. Most eloquently, he began his remarks as follows: "The strongest and most persistent prejudice against the lesbian and gay minority in Europe, is that they represent a threat to the welfare of children." He also urged the court not to adhere to a rigid one-mother/one-father model of family life.

The judges of the ECHR do not ask questions during argument but do ask them after all the lawyers complete argument. (The judges ask all their questions at once and then the lawyers respond.)

1 comment:

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