Adoption, Homosexuality and the European Convention on Human Rights: Gas and Dubois v France

AuthorPaul Johnson
Date01 November 2012
Published date01 November 2012
Lords’ decision in O’Neill vPhillips, per Lord Hoffmann),52 but, more impor-
tantly, the decision resonates with an increasingly popular yet impoverished view
of company law itself.It is submitted that by allowing the imagery of contract and
moral significance of private bargaining within company law to go too far, the
Fulham decision is illustrative of a development that is as potentially pernicious as
it was predictable.
Adoption, Homosexuality and the European Convention
on Human Rights: Gas and Dubois vFrance
Paul Johnson*
On 15 March 2012 the European Court of Human Rights (the Court) issued its first judgment
addressing the differential treatment of same-sex and opposite-sex couples in respect of the
adoption of a child.1The Court held that excluding same-sex couples in civil partnerships, who
have no legal right to marry,from adoption provisions available to married opposite-sex couples
does not violate rights guaranteed by the European Convention on Human Rights (the Con-
vention). I argue that the Cour t’s reasoning in Gas and Dubois vFrance is unpersuasive and
unsustainable in light of its wider case law.
The two female applicants in Gas and Dubois vFrance,Valérie Gas and Nathalie
Dubois, are French nationals who have cohabited since 1989.Dubois gave birth
in France on 21 September 2000 to a daughter who had been conceived by
insemination using an anonymous sperm donor.The child has lived all her life in
the applicants’ shared home, been co-parented by Gas and Dubois, and has no
relationship with her biological father.
On 15 April 2002 the applicants entered into a pacte civil de solidarité (PACS)
which is a civil partnership agreement, established in Article 515 of the French
Civil Code, defined as ‘a contract entered into by two individuals of full age, of
opposite sex or of the same sex, for the purposes of organising their life
together’.2Entering into a PACS entails a number of obligations including that
the partners live together and lend each other material and other assistance.Those
who have contracted a PACS are placed on an equal legal footing with married
52 [1999] 1WLR 1092. Noted by R. Goddard,[1999] CLJ 487; and J. Payne and D. Prentice,(1999)
115 LQR 487.
*Anniversary Reader in Sociology, Department of Sociology,University of York.
1Gas and Dubois vFrance (Application no 25951/07) 15 March 2012.The judgment was given bythe
Fifth Section of the Court and, because no request was made underArticle 43 of the Convention
for referral to the Grand Chamber, the judgment is final.The judgment of 15 March 2012 is
currently published only in French and quotations from it in English are my own translation.
2 Loi n° 99-944 du 15 novembre 1999 relative au pacte civil de solidarité.
Gas and Dubois vFrance
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited.
1136 (2012) 75(6) MLR 1123–1149

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