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.