Saturday, March 24, 2012

European Court of Human Rights rules against lesbian couple seeking second parent adoption in France

The European Court of Human Rights has ruled against Valerie Gas and Nathalie DuBois in their action against France for refusing to permit second parent adoption.  I wrote about the case when it was argued before the ECHR last year. This is a link to the judgment issued by the Court.

The international LGBT press is reporting the case as a judgment by the ECHR that marriage for same-sex couples is not required under the European Convention on Human Rights.  That principle is referred to in the opinion, but it's hardly news; the ECHR made that pronouncement in a case two years ago.  This case was not about marraige.  The case posed a question similar to the one that US states have had to consider.  French law, like that in US states, says that adoption terminates the rights of the biological parent.  The only exception is for adoption by the parent's spouse -- stepparent adoption.  When US states have allowed second parent adoption, they have done so by reading such provisions as waivable by the parties when in the child's best interest or by allowing a joint adoption by the couple so that, in effect, the biological parent's parental status is terminated by the adoption but achieved at the identical moment, along with his/her partner, through adoption.  It's not surprising that a country with a civil code, like France, would read its statutes narrowly; that's what happens in civil code countries.

The child in the case was born to DuBois after unknown donor insemination in Belgium. France limits assisted conception to infertile heterosexual couples, so the couple went out of the country to conceive a child.  The ECHR ruled that DuBois and Gas did not face discrimination based on sexual orientation because an unmarried heterosexual couple would also be unable to complete an adoption.  But an unmarried heterosexual couple using donor insemination wouldn't have to complete a second parent adoption to both be parents, so the Court really seems to have missed what is discriminatory here.

I wrote here a year and a half ago about the status of second parent/joint adoption in Europe, based on the research by Dutch law professor Kees Waaldijk.  The ECHR ruling means that member nations can continue to decide for themselves when to recognize that a child has two same-sex parents.  This is a very disappointing outcome.

1 comment:

dependableadoption said...

STEPPARENT ADOPTION is the most common type of adoption in the world today. This process allows a person to legally adopt his or her partner’s child or children. STEPPARENT ADOPTION is usually done in the court of law in the presence of an attorney and by doing so; the noncustodial parent loses their parental rights to the kid. In some cases, the noncustodial parent may have visitation rights but this will only depend on the state and also on the mutual agreement.
Doing STEPPARENT ADOPTION is highly advised for those people who are getting married to a divorced individual or widowed couple that had kids from their previous marriage. It is also advisable for those persons getting married a fresh but the partner has one or more children from the former relationship. The entire process aims at solidifying your commitment to the marriage. It also gives the noncustodial parents zero reason to disturb your marriage, unless of course visitation rights are given.
Each state may have differing laws regarding this adoption, so it is always advisable that you check with an attorney in your state.