Showing posts with label Gay Adoption. Show all posts
Showing posts with label Gay Adoption. Show all posts

March 1, 2017

In Landmark Decision The Italian Court Recognizes Gay Parents







An Italian court has ruled for the first time that two gay partners should be legally recognised as the fathers of two surrogate children. In a landmark ruling, the Court of Appeal in the northern city of Trento decided that both men can be officially named as the father - not just the parent who is biologically related.

The children, now aged seven, were born to a surrogate mother in Canada through artificial insemination and neither they nor their fathers have been identified.

In their decision, the judges said in Italy parental relationships should not be determined only by the biological link.
  
"On the contrary, one must consider the importance of parental responsibility, which is manifested in the conscious decision to raise and care for the child,” they said.

Details of the decision were published on Tuesday on Article 29, a website that refers to an article regarding family in the Italian Constitution.

It said the decision made on February 23 had "great significance", as it is the first time an Italian court has ruled that a child has two fathers, while also recognising the need to safeguard the needs of the child.


“This is a recognition of full parenthood, in other words, not adoption,” said the couple’s lawyer, Alexander Schuster. “It has recognised for the first time a foreign provision that gives the second father the status of a parent.”

The ruling was immediately hailed as an important precedent by gay activists and support groups.

“In the absence of clear laws we hope now that all Italian courts follow the same path,” said Marilena Grassadonia, president of gay parents’ group, Famiglie Arcobaleno (rainbow families).

“It is the only way that we can safeguard our children.”
Italian law currently prevents couples from using a surrogate mother, and in theory, anyone caught entering into a surrogacy arrangement faces up to two years in prison and a fine of up to a million euros.

Two years ago, a child was removed from parents who had paid a surrogate mother in Ukraine. The couple were charged with fraud and the child put up for adoption.  

In 2016, during debate over Italy's same-sex unions bill, the current foreign minister, Angelino Alfano, sparked outrage when he said that surrogacy should be treated as a “sex crime”. The Italian parliament approved civil unions between homosexuals last May despite fierce resistance from the Catholic Church and conservative politicians.

November 17, 2015

Utah Judge Who Ruled Against Lesbian Moms Steps Down



                                                                           
 Superior Judge Scott Johansen learned what it is to go against the US Law that Allows marriage to families of the same sex. This is not the same world as his dad knew then. Having a Superior Judge of a state back down on a decision within days after making it he encountered a tremendous backlash. The animal shelter cleaner position was probably being held for him.  It didn’t matter that this judge was a conservative republican in a conservative republican state; The winds have changed.


Utah judge who had ordered a baby girl taken away from her lesbian foster mothers and placed in a heterosexual home removed himself from the case Monday as criticism turned into calls for his impeachment.

Though Judge Scott Johansen had reversed his decision and allowed the 9-month-old baby to stay with the married women recommended by state welfare authorities, there were concerns he could still have the baby removed from their home in Price later on.
April Hoagland and Beckie Peirce asked for the judge to be disqualified, saying that the decision revealed a potential bias that broke the rules of judicial conduct, their lawyer Jim Hunnicutt said.
While Johansen disputed their legal standing to call for his removal, he nevertheless stepped aside nearly a week after the Nov. 10 order criticized by national gay rights groups, the state’s Republican governor and others.

                                                                     
 Moms fought for their kids

The couple applauded Johansen's decision and said they're happy the family is being treated equally.
"Our greatest concern now is taking care of our beautiful baby foster daughter," Hoagland and Peirce said in a statement.
Utah officials are pleased the child will stay in a nurturing home with the "very capable" parents, said Ashley Sumner, a spokeswoman for the Utah Division of Child and Family Services.
The case will be referred to presiding juvenile Judge Mary Manley. The couple feels like the change will make them much more likely to get a fair shot at adopting the baby girl they've been fostering for three months, Hunnicutt said.
"They are just two wonderful, normal parents with a happy baby to take care of," he said.
In his initial decision handed down during a routine hearing, Johansen mentioned research showing children do better when raised by heterosexual families. The American Psychological Association, however, has said there's no scientific basis for believing that gays and lesbians are unfit parents based on sexual orientation.
A gay rights group has filed a complaint with state judicial officials, and the watchdog group Alliance for a Better Utah on Monday called for state lawmakers to impeach the judge.
Johansen is barred from speaking about pending cases and a call to his publicly listed phone number went unanswered Monday.
Josh Kantor, the founder of the progressive-leaning Alliance for a Better Utah, said the judge's move would not change the group's push to get state lawmakers to remove him from the bench.
"This guy now has a pattern of doing these kinds of outrageous things," Kanter said.
Johansen, who has been a state judge since 1992, has had previous questions about his conduct. He was given a reprimand from the Utah Judicial Conduct Commission after he slapped a 16-year-old boy who allegedly became belligerent and insulting in his chambers in 1995.
Three years ago, a woman filed a complaint against the judge after he told her to cut off her 13-year-old daughter's ponytail in court in order to reduce the girl's sentence for cutting off a 3-year-old girl's hair.
The Human Rights Campaign is also pressing their complaint with the Judicial Conduct Commission, which can recommend a judge's removal. That group alleged Johansen discriminated against the couple based on sexual orientation and called for a quick decision ahead of the custody hearing next month.
 The Associated Press.

November 15, 2015

Utah Judge Reverses Himself on Same Sex Adoption

The Utah judge that sparked controversy earlier this week by ruling that a lesbian couple had to give their foster child to a heterosexual couple reversed his decision today. Utah officials and the couple in question both filed court challenges asking the judge to reconsider his ruling immediately after the decision was made on Tuesday. Include the following visualizations in your coverage to show the number of same-sex couples by state and to show a breakdown of public opinion on same-sex marriage.
[I just wonder if the judge said “oops” in an audible tone of voice]
Please include the following citation to source the data used in these visualizations:
Data is curated by findthedata.com and sourced from Census Bureau, Pew Research Center.

September 20, 2014

Gays Adopting is gone from Weird to the Salvation of so Many Kids



                                                                        

It used to be that the idea of gay people raising kids spooked lots of people, who thought of us only as pedophiles, not as parents. In fact, we lost a long series of court cases about the freedom to marry based on judges saying that straight folks were better for children, and therefore it made sense to exclude same-sex couples from marriage (huh?).
For instance, New York's highest court upheld the state's marriage law in 2006 by saying that "The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father."
So it was refreshing to see a recent federal appeals court rule for gay people in one of the ACLU's freedom-to-marry cases by pointing to our kids. Noting that gay people have adopted a lot of children, the court made the common-sense observation that having those parents marry would be good for their kids.
This stunning change – from losing marriage cases because of judges' fears for the welfare of our children, to winning them because of judges' concerns for the welfare of those same kids – shows how deeply America's view of gay people has changed. The country has gone from thinking of gay people as deviant, overly sexualized beings, to recognizing us as regular folks and seeing our humanity. The shift is driving the massive change in public opinion about, and in the policy environment for, lesbians and gay men across the country.
The shift springs in large part from our increasing visibility: more and more people living openly as lesbians and gay men in all parts of their lives, more and more gay people raising children, and the growing prominence of the marriage issue in public discourse. As America learns more about gay people's lives, it sees us as neighbors, not perverts; as parents, not predators; and as families, not freaks. Now that the judiciary is starting to see us this way as well, I'm optimistic about more court victories for our equality.
It's promising that the Supreme Court is now considering petitions to review that recent marriage equality ruling – which involved the marriage laws of Indiana andWisconsin – along with petitions in marriage cases from three other states: Oklahoma, Utah, and Virginia. The court could take up the issue as early as its conference on September 29th.
No matter which of these cases the Supreme Court chooses (and I think it’s likely that it takes two), I'm convinced that the stories of our families and our children will be what moves the justices, and the country, toward our greatest legal victory yet.
By James Esseks, Director, ACLU Lesbian Gay Bisexual Transgender & AIDS Project 

October 5, 2013

Netherlands Takes Legal Action Against Russia in Greenpeace. Russia Retaliates


Let me first tell you about the Russian retaliation since at the moment consist of one step hurting Russian babies without parents and couples not able to adopt. The Russians could not find a more human hurting action than cutting off the Netherlands from adopting Russian babies.
Adam Gonzalez
 Russian security services abseiling from a helicopter onto the Arctic Sunrise and seizing the ship at gunpoint following an attempt by Greenpeace activists to climb the 'Prirazlomnaya' oil rig
 
 
MOSCOW, October 4 (RIA Novosti) – The Netherlands has taken legal action against Russia, saying it illegally seized a Dutch-flagged ship and its crew during a Greenpeace protest against a Gazprom oil rig in the Arctic.
“We’re asking Russia to release the ship and the crew,” Dutch Foreign Affairs Ministry spokesman Friso Wijnen told RIA Novosti.
The Netherlands has launched the arbitration procedure under a United Nations convention on maritime law that compels the two countries to choose a third party to settle the dispute, Wijnen said.
“If there is no progress, then in two weeks’ time we will submit [the case] to the International Tribunal for the Law of the Sea in Hamburg for a provisional measure,” the official said.
Russian border guards seized the Greenpeace ship, the Arctic Sunrise, on September 19 following an attempt by several activists to climb up the state-owned rig, the first commercial offshore oil well in the Arctic.
All 30 people aboard the ship – including the crew, activists and two freelance journalists – are in Russian custody and were charged earlier this week with piracy, punishable with up to 15 years in prison.
“Russian officials will now be called to explain their actions before an international court of law, where it will be unable to justify these absurd piracy allegations,” Greenpeace lawyer Jasper Teulings said in comments posted on the group’s website.
Greenpeace is planning protests in 45 countries on Saturday to decry the arrests. The group maintains that an offshore spill in the Arctic would be impossible to clean up using today’s technologies.
The Gazprom oil rig, situated on the vast Prirazlomnoye deposit, is due to start commercial extraction by the end of the year, its operator said Friday.
The Russian Foreign Ministry has not yet commented on the Dutch legal action. No one at the ministry returned a telephone call for comment after regular working hours.

May 17, 2013

French Court Clears Way For Gay Marriage and Adoptions


France's top court ruled Friday that a bill permitting same-sex marriage and allowing gay couples to adopt children adheres to the constitution.
 President Francois Hollande is expected to sign the bill into law on Saturday.
After the lower house of Parliament, dominated by Hollande's governing Socialist Party, passed the bill last month, conservative and centrist senators filed a legal challenge with the court, the Constitutional Council.
The legislation admits France to a small but growing club.
Lawmakers in New Zealand this year made it the first country in the Asia-Pacific region to legalize same-sex marriage. The law is set to be enacted later this year.
Its move came a week after Uruguayan lawmakers approved a measure allowing same-sex marriage. The measure awaits the signature of Uruguay's president, who has indicated he supports it.
If and when the laws in New Zealand, Uruguay and France are enacted as expected, the count of nations allowing same-sex marriage will rise to 14.
France would be the ninth country in Europe to allow same sex marriage.
The first same-sex couples walked down the aisle in the Netherlands in 2001, with others following suit in Canada, South Africa, Belgium and Spain. Argentina was the first Latin American nation to legalize such marriages, in 2010. Other countries on the list are Denmark, Iceland, Norway, Portugal and Sweden.
Many countries remain split over the issue. A Brazilian court this week issued a directive removing a barrier that had limited same-sex marriage, but no bill has made it through Congress.
Legislators in the United Kingdom are also weighing proposals to legalize same-sex marriage. Lawmakers in Australia voted against a bill to legalize same-sex marriage last September. A poll for the advocacy group Australian Marriage Equality indicated that 64% of those surveyed "support marriage equality."
In the United States, the question went before the Supreme Court and justices are now deliberating over the matter.
Twelve U.S. states and the District of Columbia have legalized same-sex marriages. On the other side, many states have specific laws blocking same-sex couples from legally marrying.

March 15, 2013

Found } Gay Couple Find Baby in The Subway in 2000


A couple who found their son after he was abandoned as a baby in a New York subway station have described the chance encounter that brought the family together as their 'destiny'. 
Danny Stewart was returning home to his partner Peter Mercurio in August 2000 when he saw what he thought was a doll lying in the corner of the 14th Street A/C/E subway station in Manhattan.
When he glanced back, he saw the little legs wriggling and realized it was a baby boy wrapped in a sweatshirt. 
Miracle: Danny Stewart (left) and Peter Mercurio (right) adopted the baby boy that Mr Stewart found abandoned in a Manhattan subway station in August 2000


Meant to be: The fathers say that their son, who is now a teenager, is a 'gift' who was brought into their life by chance


The social worker immediately called the police and then made a panicked phone call to his partner, saying: 'I found a baby! I called 911, but I don't think they believed me.'
Mr Mercurio rushed to the scene where authorities had already taken charge of the day-old child who had his umbilical cord still attached. 
For several months there was wall-to-wall media coverage as authorities searched for the mother of the boy, who had been named baby Daniel 'ACE' Doe.
 
When after four months no one had come forward to claim the child, Mr Stewart was asked to appear in court to testify as to how he found the child. 
At the December proceedings, the judge suddenly asked if the couple would be interested in adopting the little boy.
Thirteen years later, reflecting on that fateful moment, Mr Stewart told NBC: 'I thought, ''Maybe this is destiny, maybe this is divine intervention. This is a gift we're given and how can we say no to a gift?’’’
Happy family: The couple and their son Kevin who has now grown into a 'great kid', the fathers say Adorable: Mr Stewart rides the NY subway with his son Kevin months after he found the boy abandoned near the turnstiles in a Chelsea station


When they were first allowed to hold the baby, the couple knew they could hardly bear to be apart from him again.
The pair were unexpectedly given custody of the boy with just 36 hours' notice, and started their life together that Christmas.
The judge later offered the couple the opportunity to adopt the little boy - at a time when it was difficult for gay partners to do so and more than a decade before same-sex marriage became legal in New York. Their new son was re-named Kevin.
The couple have kept their son's identity a secret to protect him but said his presence in their lives made them 'better people'. 
And 12 years later, they were reunited with the judge who brought their family together when she presided at their wedding.
The family had no contact with the judge who had brought them together until 2011, when they decided to wed after gay marriage was legalised in New York.
Kevin suggested that they should ask the same judge to officiate their wedding, so they contacted her through the court service and she said that she would be delighted to meet them again.
When they walked in to the court room, Kevin held out his hand to greet the woman who had given him his parents - but she insisted on hugging him instead.
Mr Mercurio wrote in the Times that they were all enjoying their catch-up so much they almost forgot to conduct the actual wedding ceremony.
The playwright has now turned his family's experiences into a film, entitled Found. 

February 20, 2013

PR Supreme Court Upholds Banning Gay Parents from Adopting


SAN JUAN, Puerto Rico — Puerto Rico’s Supreme Court narrowly voted Wednesday to uphold a law banning gay couples from adopting children.
The 5-4 vote came in the case of an unidentified woman who has sought for the last eight years to adopt a 12-year-old girl who her partner of more than 20 years had through in vitro fertilization. It was the first time that the court heard a case on same-sex adoptions.

 
A majority of judges upheld the constitutionality of a law that states a person cannot adopt a single-parent child if the would-be adopter is of the same sex as the child’s mother or father without that parent losing their legal rights.
The judges also said a family composed of a mother and father is best for a child’s dignity, stability and well-being.
“The state ... has not criminalized their sentimental relationship, but it does not have a constitutional obligation to award this relationship the same rights that other relationships have when it comes to adoption procedures,” the majority’s opinion said.
The majority also found that so-called second-parent adoptions, in which couples jointly adopt children, do not apply in Puerto Rico. That issue affects the case in question in part, the majority said, because the girl would have to be registered with two mothers and the U.S. territory’s laws do not address such a situation.
The judges said it is up to legislators to change adoption laws if they see fit.
“Starting today, the applicant should channel her efforts through the Legislative Assembly,” the majority wrote, noting that courts in Nebraska, Ohio, Wisconsin and Connecticut have struck down similar cases.
CABE, an umbrella group that represents more than a dozen local human rights organizations, said the opinion shows the legal and social vulnerabilities of the island’s gay and lesbian community.
“This opinion saddens us because we know that today they have emotionally destroyed a Puerto Rican family and left it without legal protections,” said spokesman Osvaldo Burgos.
Chief Justice Federico Hernandez Denton dissented from the ruling, calling the law unconstitutional and saying the plaintiff’s lawyers proved the proposed adoption would benefit the child. The girl, he noted, “proudly states: ‘I have two mothers.’”
“Both (women) have ideal emotional skills, intuition and protective instinct to guarantee the girl’s full and healthy development,” he wrote. “In addition, tests showed that (the girl) is mentally stable, does exceptionally well in school and gets along very well with children her age.”
By not allowing a second parent adoption, the girl does not benefit from the woman’s medical insurance or a possible will, and the petitioner would lose custody if the girl’s birth mother died or if the couple broke up, he said.
Hernandez began his opinion with a quote from President Barack Obama’s inaugural address in January, in which he said that “our journey is not complete until our gay brothers and sisters are treated like anyone else under the law.”
The chief justice criticized the judges who upheld the law, saying they interpreted Puerto Rico’s constitution in the context of the times in which it was adopted more than 60 years ago, “as if it were an ancient manuscript encapsulated in a crystal urn.”
Hernandez also noted that in 1976, Puerto Rico’s Supreme Court allowed a single woman to adopt the daughter of her ex-lover without him losing his biological rights.
“While the rest of the world keeps opening its doors to the legitimate complaints of human beings discriminated against for their sexual orientation, the majority of this court refuses to declare the law in question as unconstitutional,” he said.
The court’s opinion comes as Puerto Rican legislators prepare to debate several bills that would extend more rights to gays and lesbians, setting off a heated debate in recent weeks.
On Monday, tens of thousands of people of different religious backgrounds marched to the island’s seaside capitol to defend the traditional views of marriage and family involving a mother and a father. Several legislators joined the march, with protesters carrying signs that read, “Puerto Rico belongs to Jesus” and “Puerto Rico Stands Up in Defense of Family.”
Human rights activists criticized Wednesday’s court ruling. Among the critics was Puerto Rican pop star Ricky Martin, who tweeted his displeasure: “How sad. I see this as turning your back on childhood. So many orphans wanting the warmth of 1home.”
William Ramirez, director of the American Civil Liberties Union in Puerto Rico, said he didn’t think the court’s opinion would set a strict precedent for future cases involving same-sex adoptions.
“We have a court that is pretty much divided on the issue,” Ramirez said. “With a new set of facts in a future case, there’s room to believe this could change.

November 3, 2012

UK: Catholic Care Agency Loses Gay Adoption Fight


A Roman Catholic adoption agency has been told it cannot turn away gay couples if it wants to keep its charitable status.
Catholic Care, run by the Diocese of Leeds, wanted its adoption service to be made exempt from equality laws.
A judge has ruled the charity had failed to give convincing reasons why it should be allowed to do so.

Catholic Care said it would consider its position but could have to end the service as it would lose funding.
The charity - which has been placing children with adoptive parents for more than 100 years - was among 12 Catholic agencies in England and Wales forced to change their policy towards homosexual people due to equality laws passed in 2007.
Others have since closed or cut their ties with the Church.
Appeals rejected
Catholic Care had tried to change its constitution so that it would be committed to following Catholic teaching and placing children only with heterosexual parents.
The agency, which serves the dioceses of Leeds, Middlesbrough, and Hallam in South Yorkshire, had argued the Equality Act went against the Catholic Church's teachings on marriage and family life.
The latest ruling by a judge in the Upper Tribunal, which is the equivalent of the High Court in the administrative justice system, follows rejections of the charity's case in the High Court and by the Charity Commission and the Charity Tribunal.
In its judgement, the tribunal said Catholic Care had not provided sufficient evidence that its funding would dry up and it would be forced to close, and some potential adopters would then not come forward.
In a statement, Catholic Care said: "Without the constitutional restriction for which it applied, Catholic Care will be forced to close its adoption service.
BBC
"The reason for this is that the service permitted by the current constitution is in conflict with the aims of the charity.
"It is Catholic Care's view that this will reduce the number of adoptive parents available and the number of children left waiting for adoptive parents will continue to increase.
"Catholic Care will now take time to consider the decision in detail and decide on its next steps."

October 5, 2012

Gay Couple Wins Right to Twin Boys After Surrogate Disappears



(Daily Mail) 

A gay couple has won the right to be recognised as the legal parents of twin boys after the surrogate mother they paid to carry them disappeared.
The woman, believed to be living in the state of Andhra Pradesh, India, handed over the boys last year without giving her formal consent to the handover.
The couple arranged to pay a Hyderabad clinic £17,000 to become the children's parents under a commercial surrogacy agreement in 2010.
But after the babies were born in India the following year, the surrogate mother did not formally give consent for them to be treated as the British couple's children.
Application: The couple, who cannot be named, went to the High Court in London to obtain parental orders after they failed to trace their children's natural mother
Application: The couple, who cannot be named, went to the High Court in London to obtain parental orders after they failed to trace their children's natural mother
The men were in a legal limbo until Tuesday, when Mr Justice Baker granted them 'parental orders' after hearing that they had taken 'all reasonable steps' to find the anonymous donor.
It is believed to be the first time that a court in England or Wales has made such an order without the consent of a birth mother.
The couple, who cannot be named for legal reasons, have been bringing up the babies since their birth in July 2011 and now have the authority to continue.
The judge said that there were lessons to be learned after hearing how the couple entered into the surrogacy agreement with the clinic and the mother in 2010.
An 'anonymous Indian egg donor' was selected and one of the men was the 'genetic father'.
The judge said the couple agreed to pay about £17,000 for the 'entire package of treatment and costs'.
Before the twins were born, the couple’s lawyers wrote to the director of the clinic pointing out the need for the surrogate mother to give consent to parental orders.
The director replied that the clinic 'would be happy to be of help'.
The judge said after the boys were born, the couple received a document purportedly signed by the surrogate mother and a doctor.
The woman is believed to come from the state of Andhra Pradesh, the capital of which is Hyderabad (pictured)
The woman is believed to come from the state of Andhra Pradesh, the capital of which is Hyderabad (pictured)
The document said the surrogate mother had no objections to the provision of the boys’ exit visas.
Mr Justice Jonathan Baker said the couple 'assumed responsibility' for the babies two days after their birth and left India without the surrogate mother giving signed consent to parental orders.
The judge said one of the men emailed the director of the clinic setting a 'deadline' for the production of the mother’s signed consent.
Three days later they received a package, purportedly from the director, containing a sheet of paper with an 'obscene gesture' printed on it.
The couple then asked an 'inquiry agent' to try to find the surrogate mother - but without success.
In his ruling, the judge said: 'It is a very important element of the surrogacy law in this country that a parental order should normally only be made with the consent of the woman who carried and gave birth to the child.
'The reasons for this provision are obvious. A surrogate mother is not merely a cipher.
'She plays the most important role in bringing the child into the world. She is a "natural parent" of the child ...
'The act of carrying and giving birth to a baby establishes a relationship with the child which is one of the most important relationships in life.
'It is therefore not surprising that some surrogate mothers find it impossible to part with their babies and give consent to the parental order.'
The judge continued: 'I accept that these applicants have taken all reasonable steps to obtain the woman’s consent.
'If it is correct that she is living in the state of Andhra Pradesh, then she is one of many millions of women living in that state and there is in my judgment no realistic hope of finding her.
'I accept that it is not the applicants’ fault that they found themselves in this position.
'I am satisfied that they reasonably believed that the clinic and its staff would behave responsibly.
'It seems that they and the twins have been badly let down.'

April 3, 2012

UK } Can A Gay Couple Adopt Their Partner’s Child?


 

No - at least not in France, according to Strasbourg's judgment in Gas and Dubois v France
baby adoption
Valerie Gas applied to adopt her partner's daughter, but the French authorities refused her permission. Photograph: Alamy
The French government did not violate articles 8 (right to respect for private and family life) and 14 ECHR (right not to be discriminated against in one's enjoyment of Convention rights and freedoms) in not allowing one partner in a homosexual couple to adopt the child of the other, according to Gas and Dubois v France (2012) (application no 25951/07 - judgment in French). And the Daily Mail goes off on another frolic of its own.
Ms Valerie Gas and Ms Nathalie Dubois, now in their 50s, lived together as a lesbian couple, obtaining the French equivalent of a civil partnership (the pacte civil de solidarit√©, or PACS) in 2002. Ms Dubois, through artificial insemination in Belgium using an anonymous sperm donor, gave birth to a girl in September 2000. Together, they took care of the child and, in 2006, Ms Gas applied to adopt the girl with the consent of her partner, Ms Dubois. The application was rejected by the French courts by virtue of article 365 of the French Civil Code. Under article 365, the adoption would have transferred Ms Dubois's parental authority to Ms Gas, leaving Ms Dubois with no parental authority over her own biological daughter. Article 365's only exception is when a spouse adopts the child, in which case parental authority can be shared between the spouses. Under French law, however, Ms Gas and Dubois could not qualify as spouses since homosexual couples cannot get married (article 144 of the Civil Code). The French tribunal thus rejected the request for adoption on the grounds that it would have legal consequences contrary to the intentions of the applicants and, by depriving the biological mother of her legal rights over the child, to the interests of the child.
And so the aggrieved applicants went to the European Court of Human Rights, invoking Article 8 (right to respect for his private and family life) and Article 14 ECHR (right not to be discriminated against in one's enjoyment of Convention rights and freedoms).
The French government argued that Article 8 was not engaged since it did not guarantee a right to adopt or a right to parentage. With Article 8 removed, the government argued, the Article 14 claim should also collapse since Article 14 has no independent existence. It is parasitic on other Convention rights.
The European Court, however, held that the issue touched upon family life and that sexual orientation fell within the protective scope of Article 8.
Ms Gas and Dubois's argued that the 'unintended legal consequences' argument affected only same-sex couples since, unlike heterosexual couples, they could not get married and rely on the exception in article 365 of the Civil Code. They asserted discrimination on the basis of sexual orientation. Unmarried heterosexuals could always get married to benefit from the article 365 exception, but not so their homosexual counterparts. The applicants called for legislative change to end this discrimination.
The French government denied that article 365 was discriminatory: it applies to all unmarried couples. The 'spouse' exception was introduced to protect the interests of the child. The French government's view was that marriage forms a more stable basis for a couple than any other type of union. When a marriage breaks down, for example, divorce proceedings are automatically engaged. With the PACS, matters are far more informal, the process and consequences less onerous. This explains the married-unmarried distinction for the purposes of adoption. The government also denied indirect discrimination, for family life can be enjoyed without marriage and without parenthood. And if a change in the law should be needed, argued the government, then this was a matter for the legislature to consider, following a democratic debate.
A number of third party groups, including the International Federation for Human Rights, the British Association for Adoption and Fostering, and LGBT associations, made a common submission to the Court. They pointed out that 10 European member states, and many other jurisdictions, allow adoption by the second parent. They submitted that, contrary to the government's view, granting parental authority to both parents could enhance the well-being of children and better protect their interests. This view was echoed by Judge Villiger in his impassioned, child-centred dissenting judgment.
So what did the European Court conclude? First, it referred to its decision in Schalk and Kopf v Austria, n. 30141/04): Article 12 (right to marry and establish a family) does not impose an obligation to allow homosexual couples to marry, and the Article 8-Article 14 combination cannot show otherwise. When member states do offer homosexual couples a form of legal recognition (such as civil partnerships or the French PACS), they enjoy a margin of appreciation in determining the exact nature of this recognition.
The European Court, by six votes to one, rejected the discrimination argument of Ms Gas and Ms Dubois. The Court supported the view that marriage conferred a special status on a couple and was replete with social, personal and legal consequences. The Court did not consider the applicant's situation as legally analogous to that of a married couple who wished to adopt. A better analogy, said the Court, was that of unmarried heterosexual couples wishing to adopt, and since they too could not adopt and benefit from the article 365 spousal exception, there was no discrimination on the basis of sexual orientation.
Ah, but what about the applicant's argument based on indirect discrimination: unlike unmarried heterosexual couples, they could get not married. The Court simply – and somewhat disappointingly – referred back to earlier paragraphs in the judgment about Article 12 ECHR not obliging member states to allow homosexual couples to marry, the special status of marriage, and the non-analogous legal situation with married couples (paragraphs 66 to 68).
The Daily Mail's interpretation
That, in essence, is the court's judgment. It is puzzling, therefore, to read an account of the case in the Daily Mail of 20 March 2012. The article, dramatically entitled "Gay marriage is not a 'human right': European ruling torpedoes Coalition stance", notes:
"The ruling also says that if gay couples are allowed to marry, any church that offers weddings will be guilty of discrimination if it declines to marry same-sex couples. It means that if MPs legislate for same-sex marriage, the Coalition's promise that churches will not be compelled to conduct the weddings will be worthless."
The judgment says no such thing. There is no mention of churches, or of the wider legal implications of the judgment on marriage and discrimination. It is perfectly acceptable to use a judgment as a 'peg' for a more topical discussion, but this appears to be pure fabrication.
In Capability and Well-being, Amyarta Sen warned against ironing out the complexities and ambiguities of an idea: 'if an underlying idea has an essential ambiguity, a precise formulation of that idea must try to capture that ambiguity rather than hide or eliminate it.' There is a great danger, in writing newspaper articles (and short blog posts) on human rights cases, of over simplifying matters, of creating a false impression that the issue is straightforward. The case of Gas and Dubois v France is a good illustration of a simple set of facts – a homosexual woman wishing to adopt her partner's child – hiding a plenitude of legal, social, political and moral issues. Of this, the European Court was acutely aware and accordingly adopted a cautious approach.

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