Information Note on the Court’s case-law No. 150
March 2012
Gas and Dubois v. France - 25951/07
Judgment 15.3.2012 [Section V]
Article 14
Discrimination
Refusal of simple adoption order in favour of homosexual partner of biological mother: no violation
Facts – The applicants are two French women who have been cohabiting since 1989 and who entered into a civil partnership agreement in April 2002. In September 2000 the second applicant gave birth in France to a daughter who had been conceived in Belgium by means of medically assisted procreation with an anonymous donor. The child has lived all her life in the applicants’ shared home and was formally recognised by her mother in October 2000. In March 2006 the first applicant applied for a simple adoption order in respect of her partner’s daughter, with her partner’s express consent. The tribunal de grande instance, while observing that the statutory requirements for the adoption had been met, nevertheless refused the application on the grounds that the adoption would have legal implications which ran counter to the applicants’ intentions and the child’s interests, since parental responsibility would be transferred to the first applicant, thereby depriving the second applicant, the child’s biological mother, of her own rightsin relation to her child. The first applicant appealed against that decision. The court of appeal dismissed the challenge and upheld the finding that the legal consequences of the adoption would be contrary to the child’s best interests. The court further considered that simply delegating the exercise of parental responsibility at a later date would not suffice to eliminate the risks to the child resulting from the loss of parental responsibility on the part of her mother.
Law – Article 14 in conjunction with Article 8: The present case differed from the case of E.B. v. France[1], which concerned the response to an application for authorisation to adopt lodged by a single homosexual, as the applicants in the instant case complained of the refusal to grant a simple adoption order. Since the applicants were not married they were prevented from sharing parental responsibility. Accordingly, in the instant case, the legal consequences of simple adoption would be contrary to the child’s interests, given that the adoption would entail the transfer of parental responsibility to the adoptive parent while depriving the child’s biological mother of her rights, despite the fact that she intended to continue bringing up her child.
As to the issue of medically assisted procreation using an anonymous donor, this was available in France only to infertile opposite-sex couples, a situation which was not comparable to that of the applicants. It followed that the French legislation on the subject could not be said to give rise to a difference in treatment to the detriment of the applicants.
With regard to the legal situation of the applicants, who did not have the right to marry but had entered into a civil partnership agreement, compared with that of married couples, the Convention did not require the Governments of the Contracting Parties to grant same-sex couples access to marriage. If States chose to provide same-sex couples with an alternative means of legal recognition, they enjoyed a certain margin of appreciation regarding the exact status conferred (see the Schalk and Kopf judgment[2]). Marriage conferred a special status on those who entered into it. The exercise of the right to marry was protected by Article 12 of the Convention and gave rise to social, personal and legal consequences. Hence, the applicants’ legal situation could not be said to be comparable to that of married couples when it came to adoption by the second parent.
In examining the applicants’ situation compared with that of opposite-sex couples who had entered into a civil partnership, the Court observed that the latter were likewise prohibited from obtaining a simple adoption order. Accordingly, the applicants had not been discriminated against on the basis of their sexual orientation.
In view of the underlying purpose of Article 365 of the Civil Code, which governed the transfer of parental responsibility in the event of simple adoption, there was no justification, on the sole basis of a challenge to the application of that provision, for authorising the establishment of a dual parental tie with the child.
Conclusion: no violation (six votes to one).
[1] E.B. v. France [GC], no. 43546/02, 22 January 2008, Information Note no. 104. [2] Schalk and Kopf v. Austria, no. 30141/04, 24 June 2010, Information Note no. 131.
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This summary by the Registry does not bind the Court.
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