The Court of Cassation, France’s highest court of civil and criminal law, has ruled that same-sex couples can jointly adopt the biological children of one of the partners, even when they are conceived abroad through sperm donation.
France legalised same-sex marriage and adoption last year, but does not allow same-sex couples to make use of sperm or egg donation to conceive a child.
It’s possible to travel abroad to conceive a child through gamete donation, but French courts have generally treated such attempts to get around the law as fraud, and prevented same-sex couples from jointly adopting the children.
However, the Court of Cassation’s ruling means that one member of a same-sex couple can travel abroad and conceive a child through gamete donation, and then jointly adopt the child with their same-sex partner back in France.
According to the French edition of The Local, the Cassation ruling stated that French law allows “by adoption, the establishment of a family link between a child and two people of the same sex, without any restriction relative to the mode of conception of the the child.”
The ruling is advisory and not enforcable, but decisions of this type generally serve as a precedent that is then followed by lower courts.
“It would be surprising if judges continue to resist this,” Lawyer Florent Berdeaux-Gacogne, who represents gay couples in adoption cases, told French daily Le Figaro.
According to LifeSiteNews, a tribunal in Versailles 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.” Other courts went the opposite way and allowed adoption despite “illegal conception.”
National Assembly member Hervé Meriton of the centre-right UMP party said that this case illustrated the problems with legalising gay marriage.
“The only way to get out of this spiral is to repeal the (gay marriage) law. Any other response would be hypocritical because the law doesn’t stop IVF” he said. “To avoid that we need a clear political line.”
