France’s high court takes step toward allowing gay adoption of IVF babies
France has taken a significant step towards allowing same-sex “married” couples to adopt children born abroad through in vitro fertilization. In response to several requests presented by tribunals in Avignon and Poitiers, the Court of Cassation, France’s court of final appeal on criminal and civil issues, has given its opinion that nothing opposes the right to adoption, “as long as legal conditions are all met and the adoption is in the child’s best interest.”
The two cases involve lesbian “married” couples in which one of the partners obtained artificial fertilization through anonymous donor sperm abroad. Under French law, the procedure is legal for stable couples when the infertility of one of its members has been medically proved. This amounts to restricting it to couples formed by a man and a woman: an interpretation that was confirmed by the Constitutional Council in May 2013.
Indeed, during the same-sex “marriage” debate, the socialist government decided to hold back on legalizing access to assisted procreation for same-sex couples, as well as surrogate motherhood, although they are allowed to adopt together or to adopt each other’s children. Massive opposition to the “Taubira law” certainly played a part in causing the government to trim down the text.
This sparked resentment among homosexual activist groups and their political supporters, including the Ecologists, who have been working towards the proposal of more liberal texts that are expected to come to Parliament before long.
But as soon as the same-sex “marriage” text became law, legal specialists pointed out that the banning of assisted procreation and – on a lesser scale – surrogate motherhood for those couples would not hold out for long. It would probably, they said, come in through the window on the grounds of non-discrimination, especially since the European Court of Human Rights has repeatedly judged that in the same legal situation, same-sex and “heterosexual” couples should receive equal treatment.
The Court of Cassation has anticipated this by waiving the question of “legal fraud” in the case of same-sex couples who deliberately violate the existing ban on assisted procreation by going to Belgium or Spain where fertility clinics advertise their willingness to cater to them.
Such a decision had been handed down by a tribunal in Versailles, which decided last April that the “illegal conception” of a child was a “fraud” and that this posed an obstacle to its adoption by its mother’s partner. It added that as surrogate motherhood is subject to penal sanctions, recognizing a right to adopt for lesbian couples in this situation would “discriminate” against male homosexual couples and violate the principle of “equality before the law.”
But most decisions in similar cases – on a total of 295 tallied by mid-July since the Taubira law was promulgated – went the other way, allowing adoption despite the “illegal conception”: an obvious encouragement for lesbian couples to go ahead with the procedure.
No appeals or cassation procedures exist yet to fix the jurisprudence couples can expect in these matters from the highest judiciary court. Which is why several judges decided, before examining such affairs, to interrogate the Court of Cassation, whose opinion, in such cases, is not binding. But nonetheless important: it indicates what will happen if it is brought to examine the legality of decisions in similar cases.
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And no less clearly the Court’s opinion is favoring an evolution of the law: refusing to qualify the act of going abroad for fertilization as a “fraud” under French law insofar as the procedure is legal elsewhere and “does not violate an essential point of French law,” it considered that it is in a child’s best interest to be adopted by the female partner of its biological mother, even if its conception deliberately deprives it of its father.
Couples who have been revealing the fact that they resorted to artificial conception with anonymous sperm abroad need certainly not have done so. They have been explaining that they did so out of “honesty,” and also to avoid having to reveal the identity of the father – which would give him rights they are not prepared to share.
But it is not hard to imagine that they were sincere about the conceptions’ circumstances in view of obtaining decisions such as this on the grounds of “equal treatment.”
All this will give extra momentum to the upcoming national rally for the family and against all procedures that deliberately deprive a child of its natural parent or parents: the “Manif pour tous” has called on the French to demonstrate massively on October 5.
But no one is going the whole way. All artificial procreation with donor sperm or ovules fabricates children who are artificially deprived of one or both or their real parents – even when it is reserved to married (“heterosexual”) couples. That is the fundamental inconsistency of those who oppose homosexual adoption and same-sex “parenthood” – exposing themselves to being rejected as “discriminators” – without realizing that defending the family means putting the child’s real interests first in all situations.