French legislation which favours opposite-sex couples in regard to both adoption and access to certain Assisted Human Reproduction (AHR) techniques are not in breach of the European Convention on Human Rights, the European Court of Human Rights has ruled.

In the case of GAS et DUBOIS c. France (Requête no 25951/07), the court held, by six votes to one, that there had been no violation of the Convention by the limitation of artificial insemination to heterosexual couples and by the French refusal to allow a woman to adopt her same-sex partner’s child.

In respect of the use of artificial insemination to conceive a child, the court said that the French law restricting this to opposite-sex couples did not breach the Convention because same-sex couples and opposite-sex couples are different.

The case concerned the refusal by the French Courts of an application by a woman, Ms Gas, to adopt the child that her female partner had conceived abroad by means of medically-assisted procreation with anonymous donor.

The French courts said that such an adoption would deprive the biological mother of her rights and parental authority in respect of the child, and therefore, it would run against the child’s best interests.

The applicants challenged the refusal of Ms Gas’s application to adopt Ms Dubois’ child.

They argued that it infringed upon their right to respect for their private and family life and was discriminatory, in breach of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for their private and family life) of the European Convention on Human Rights.

They said that the French law upon which the ruling was based applied only to married couples and not to civil-partners.

This law states that if the unmarried partner of the mother adopts the child, the mother loses her rights to the child.

They argued that because they are unable to marry as a same-sex couple, this law amounted to “indirect discrimination” based on the parents’ sexual orientation and operated to the detriment of the child.

The Court reiterated its earlier ruling that Article 12 of the Convention, which only guarantees the right to marry to men and women, “does not require States to open marriage to a homosexual couple”.

The Court also noted that “the right to homosexual marriage cannot be derived from Article 14 (which deals with the right to freedom from discrimination) taken in conjunction with Article 8 (which acknowledges the right to family life)”.

Moreover, the Court said “if a State chooses to provide same-sex couples with an alternative means of recognition, it enjoys a certain margin of appreciation to decide on the exact nature of the status conferred”.

The court also rejected the contention that French law, which confines access AHR techniques to infertile heterosexual couples only, was discriminatory in this regard.

It held that reserving this technique for infertile heterosexual couples only was not discriminatory because, firstly, the heterosexual and homosexual couples are different, and secondly, because access to this technique is “conditional to the existence of a therapeutic goal”.

Under French law, AHR must aim at remedying infertility of a pathological nature which has been medically established or to prevent the transmission of a serious illness.

However, the court pointed out, infertility amongst homosexual couples does not exist due to such physical causes.

The ruling was welcomed by the European Centre for Law and Justice, a human rights advocacy body, who said that it provided important clarification on the issue of adoption and artificial procreation for homosexual partners.