The European Court of Human Rights has ruled against a lesbian couple from France who were seeking to jointly adopt a child one of them had conceived.
Valérie Gas and Nathalie Dubois had a child through artificial insemination in Belgium but the law in their native France forbids unmarried couples from jointly adopting a child.
Mme Dubois will continue to be recognised as the girl’s biological mother but her partner will not as the Court ruled that this law applies equally to gay and straight couples.
France’s Civil Solidarity Pacts, or PACS as they are usually known, confer some domestic partnership rights, but fewer than a marriage would.
Crucially in the case decided last week, the system is open to both gay and straight couples who are equally barred from adoption while in a PACS.
Though a straight couple in France can marry if they choose and thus become eligible for adoption whereas a gay couple cannot, the Court ruled that there was no right to a gay marriage.
Mme Dubois and Mme Gas’ daughter was born in 2000. The French courts accepted that they were bringing her up jointly but ruled that the only way Mme Gas could adopt the girl would be for Mme Dubois to relinquish all her parental rights, as joint parenting was only permitted by a husband and wife.
The European Court of Human Rights found that this rule would be applied in the same way to a straight couple in the gay couple’s situation so did not amount to discrimination on the grounds of sexual orientation.
The couple maintained that their rights under Articles 14 (prohibition of discrimination) and 8 (right to respect for private and family life) of the European Convention on Human Rights were being infringed by the law.
The applicants argued that since a straight couple in their situation could circumvent the bar to adoption by marrying, they were being discriminated against.
But a chamber of seven judges upheld the European Court of Human Rights’ earlier view that gay couples do not yet have the right to access marriage equally.
It referred back to a 2010 case, Schalk and Kopf v. Austria, in which it affirmed that governments were not obliged to offer gay couples equal rights to marriage.
However, as Professor Robert Wintemute explained to PinkNews.co.uk last year when discussing the Equal Love campaign’s legal challenge of the UK’s ban on gay marriages, the court had expressed in an opinion in that case that the article governing the right to marriage may not always be interpreted as referring only to straight couples.
He said: “Although the court ruled that Article 12 of the Convention did not yet impose an obligation on European governments to allow same-sex couples to marry, the court changed its interpretation of Article 12, saying that it ‘would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex’.
“When more Council of Europe countries than the current seven (out of 47) allow same-sex couples to marry, the court will be willing to consider ordering all of them to do so. The number of European countries that allow same-sex marriage increased from three in 2005 to seven in 2010, and could double again while this case is pending.”
Since the Equal Love campaign’s legal challenge to lift the ban on gay marriages and straight civil partnerships was launched, the government has unveiled proposals to allow gay couples to marry. A public consultation began last week into how to introduce equal marriage rights, but the government does not yet plan to allow straight couples to access civil partnerships.
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