In the case of Gas and Dubois v France, the European Court of Human Rights (ECtHR) has found that there was no violation of Article 8 and Article 14 of the European Convention on Human Rights (ECHR) by the French government when it refused to allow one partner in a same-sex couple to adopt the child of the other.
Ms Valerie Gas and Ms Nathalie Dubois are a lesbian couple who obtained the French equivalent of a civil partnership (pacte civil de solidarité or PACS) in 2002. Ms Dubois gave birth to a girl in September 2000 and conceived the child through artificial insemination using an anonymous sperm donor. Ms Gas wished to adopt the child with the consent of her partner. However, her application was rejected by the French courts subject to article 365 of the French Civil Code. This article provides that when a spouse adopts a child, parental authority can be shared between spouses. However, Ms Gas and Ms. Dubois do not qualify as spouses under French law as homosexual couples are not permitted to marry. The French tribunal reasoned that as parental authority would be transferred from Ms Dubois to Ms Gas, this would deprive Ms Dubois (the biological parent) of parental authority and so this was contrary to their interests and the interests of the child.
The applicants brought the case to the ECtHR relying on Article 8 (right to respect for his private and family life) and Article 14 (right not to be discriminated against in one’s enjoyment of Convention rights and freedoms). However the Court referred to its decision in Schalk and Kopf v Austria and held that when a form of legal recognition is offered to a homosexual couple by a member state, the state “enjoys a margin of appreciation in determining the exact nature of this recognition.” The court held further that Ms Gas and Ms Dubois were not discriminated against as the court “did not consider their situation to be analogous to that of a married couple who wished to adopt.” In relation to the applicant’s argument based on indirect discrimination (the couple, in contrast to heterosexual couples cannot get married) the Court referred to Article 12 and restated its findings in relation to access to marriage for same-sex couples.
A number of organisations intervened in the case a third parties and included; the International Federation for Human Rights (FIDH), the International Commission of Jurists (ICJ), the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), the British Association for Adoption and Fostering (BAAF) and the Network of European LGBT Families Associations (NELFA).
Click here to see the judgment (French only).
Click here to see a press release on the case in English.
Click here to see a post by the UK Human Rights Blog.