France Says “Non” To Lesbian (Legal) CoParents

Just a few months ago the supreme court of Idaho–a state not generally seen as wildly progressive–affirmed that Idaho law allowed a lesbian to adopt the child she was raising with her partner.    Now France–a country often associated with expansive views–seems to be heading in the opposite direction.   A court there (albeit a lower court) just held that a lesbian cannot adopt the child she has been raising with her partner.

In both of these cases what the prospective adoptive mother wanted was to gain legal recognition for a relationship that already existed in fact.  This is not always what one seeks in adoption.  Sometimes the law brings relationships into being–as when a person who has not been functioning as a parent seeks to adopt a child and become that child’s parent.   But the law can also be called upon to grant legal recognition to existing relationships.  When it does so it protects and solidifies those relationships.  

I have not read the French court’s decision but it is possible that the judge felt constrained by the way the law governing adoption was written.   The reaction, however, suggests to me that the judge had room to interpret the statute to permit the adoption and chose not to.

How should a court (or for that matter a legislature) think about a question like this?  If the child already lives in a family with two mothers, what is gained by barring legal recognition of one of the mothers?   Perhaps the hope is that other women will be deterred from following this path because the second mother will not be able to secure legal rights?

This seems to me a ridiculous basis on which to deny the actual existing family protection of the law.   You don’t have to spend much time reading the paper to see that people enter into family-like arrangements with little regard for the law.  (Indeed, the very last post is about a case where very well-heeled and educated people didn’t spend quite enough time contemplating the law before setting out on a path of family formation.).

I will endeavor to follow the French case.   But for the moment I’d rather be in Idaho.

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16 responses to “France Says “Non” To Lesbian (Legal) CoParents

  1. These are importantly different cases, it seems to me. The French case is not about same-sex adoption per se. Same-sex adoption is legal for married same-sex couples in France. The problem for the lesbian couple in this case is that they evaded French law; France only permits procreation with donor sperm for different-sex infertile couples (who are seen as having a medical need), so the couple performed the procedure in Belgium. The difference in outcome between France and Idaho has less to do with legal attitudes toward lesbian co-parenting and more to do with legal attitudes toward artificial reproduction, which is regulated much more strictly in France than it is most anywhere in the US.

    • so in your opinion is this more about punishing the couple for bypassing the french law in the first place?

      • Yes. See, e.g., this Guardian article, which is more explicit on this point: http://www.theguardian.com/world/2014/may/02/french-court-blocks-gay-womans-adoption-partners-child-ivf It also looks like the legal issue here remains unresolved, and this ruling might be the outlier right now.

        French courts are similarly harsh in their treatment of surrogacy, refusing to recognize the foreign adoptions of couples who travel elsewhere to bypass France’s surrogacy ban.

        • It’s true that it might be an outlier. And I think the distinction you draw about what the French couple did is also important.

          There’s also another difference that I think it highlighted by kisrita’s comment and your response. The French court seems to be more interested in marking its disapproval of the couple’s actions than of dealing with the reality the child lives with. Same, I think, with the surrogacy cases.

          I don’t think this is particularly French. This is a big dilemma in law. Do you punish the French couple (and therefore the child) in order to make a point about law? Or do you take the child where you find it and deal with the realities of the situation?

          • The reality that the child lives with can be easily changed. We don’t make the child’s unchanging reality a top priority in any other situation, children are forced to adapt and cope with changing reality all the time. It’s the least of anyone’s worries.

            • I think you’re mistake about the ease with which children’s lives can be altered. I mean it is easy in the sense that children are weak and powerless and can be removed from one home and placed into another if adults want to do that. But it is NOT easy for the child and can often lead to permanent harm.

              I’m deeply impressed with the resilience of children. It is a wonderful thing because many children do have to endure unspeakable loss and pain: children who live in war zones or whose parents die and so on. To me it is a different thing when the state deliberate inflicts the same pain. It may be justified sometimes—where a person kidnaps an infant and then proves to be a perfectly competent parent, we might still want to remove the child from that home. And perhaps you see what the lesbian couple did as the equivalent of kidnapping. In which case the harm to the child is perhaps for you justified. But I think you need to recognize the harm being done.

              (I probably don’t need to say this but I do not see the lesbians’ evasion of French law as the equivalent of kidnapping. I imagine some who place primacy on the genetic material do.)

            • absolutely and often it won’t change reality. the partner is not going anywhere. The authority flows thru someone rather than directly to the child.

      • See? That’s how it should be. When you rob a bank, you don’t get to keep the money.

      • I think they shouldn’t be allowed to keep the child at all. Even the mother has proven to be an unfit parent, by her admission of how she got pregnant intentionally using a sperm donor. (Now, if she had come back to France pregnant and simply said she’d had a drunken one night stand, she’d be able to avoid punishment. The crime is in the intention, like first degree murder is a much worse crime than manslaughter or second degree murder.)

        • john your assertion is mere prejudice based on no evidence whatsoever. yet you keep repeating it and repeating it like its some absolute truth.

          • Huh? It’s my opinion. That’s what the “I think” means. (Though it is certainly true that intent matters in law)

            • well after a couple years of repeating your opinion, you’ve had more than enough time to check out if there is any factual basis to it. you know that if someone has a kid out of wedlock they are necessarily a bad parent.

              • I don’t know what you mean. I am saying that the act of intentionally having a child using donor gametes ought to be disqualify someone, the same way purchasing a child on the black market ought to disqualify someone. I’m not talking about their parenting skills.

          • (I see I wasn’t clear about that, and seemed to imply that’s the way the current French law worked in my second sentence, sorry.)

        • I think the French legal rule depends on the method of conception, not the intent or absent of such. E.g., I don’t think this case would have the same result if the birth mother here had intentionally conceived by having sex with a male friend (though the adoption might require the consent of the genetic father, I don’t know how these things work in France).

          • Using a donor implies intent, as opposed to merely becoming pregnant, which can happen unintentionally. Intent doesn’t matter currently, but I think the USA (and every country) should prohibit intentional unmarried conception.

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