The Cour de cassation, the highest court of criminal and civil matters in France, took on July 8, 2010 a landmark decision that could be a step towards the legal recognition of same-sex couple adoption in France. The Court decided that a certain US ruling made by the County of DeKalb in Detroit, Georgia, which recognized two women as the same child’s legal parents, should be put into effect in France.
By acknowledging a legal parent-child relationship between a French woman and her American partner’s birth daughter, the French tribunal recognized for the first time that a child could have two parents of the same sex.
A CONFLICT OF INTERNATIONAL LAW
Mrs. B is a French physician established in the United States, where she met Mrs. N, an American citizen who's also a doctor. In 1999, in Atlanta, thanks to an artificial insemination by an anonymous donor, Mrs. N gave birth to a baby girl. Mrs. B then filed an application to adopt her partner’s newborn daughter. The State Court of DeKalb County approved the application since it was “in the best interest of the child” given that “it would be inconsistent with the reality of the provisions related to the child’s education to terminate the rights of the legal parent or to refuse the demand of adoption by the second parent, given that the adoption benefits from the formal consent of the legal parent”. A new birth certificate was issued indicating Mrs. N as the mother and Mrs. B as the second parent.
In 2007, Ms. B demanded the Tribunal de Grande Instance of Paris (TGI) to legally recognize this decision in France. However, the tribunal dismissed the application stating that it would be contrary to the "French international public policy" and that the adoption by Mrs. B would deprive the biological mother of the parental authority over her daughter, which would be contrary to the interest of the child.
LAW AND SOCIAL REALITY
Thus, in 2007, the demand was initially dismissed. But the interpretation given at that time was questionable, as explained by jurist Géraud de La Pradelle, in La Gazette du Palais September 6, 2007: “The court should have noticed that the situation was characterized by the fact that U.S. law – as applied by the Court of DeKalb – and French law – as interpreted by jurisprudence – both prescribe the preservation of the parental authority by the biological mother. (...) In this particular case, adaptation would lead to executing the American decision, which is absolutely consistent with the requirements of French civil law as the court had estimated”. Even though Mrs. B. appealed the decision, the French court of appeal (Cour d’appel) confirmed the tribunal’s verdict in 2008.
“AN EXTRAORDINARY DECISION”
However, on July 8, 2010, the reasons advanced by the court of appeal were not endorsed by the French Cour de Cassation, which instead ordered the execution in France of the American tribunal’s decision. In other words, the child in question has now, in France, two legal parents of the same sex. "It's an extraordinary decision”, announces proudly Mrs. B’s lawyer, Maître Caroline Mécary.
“This decision opens the door to all similar requests concerning the adoption by a second parent, regardless of his or her sex”, emphasizes Maître Mécary. “It calls into question the French law about adoption, which nowadays doesn’t allow unmarried couples or civil partners to adopt. And it also highlights a reverse discrimination, since French homosexual couples are treated worse than binational couples, that have benefited from a judgment which recognizes the second parent de facto abroad”.
(To read these articles in French, click on La Cour de cassation a l'occasion d'ouvrir l'adoption aux couples gays et lesbiens and on La Cour de cassation reconnaît qu'un enfant peut avoir deux parents de même sexe)