Individual Adoption by Non‐Heterosexuals and the Order of Family Life in the European Court of Human Rights
| Published date | 01 December 2009 |
| Date | 01 December 2009 |
| Author | Linda Hart |
| DOI | http://doi.org/10.1111/j.1467-6478.2009.00482.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 36, NUMBER 4, DECEMBER 2009
ISSN: 0263-323X, pp. 536±57
Individual Adoption by Non-Heterosexuals and the Order of
Family Life in the European Court of Human Rights
Linda Hart*
This article analyses two judgments by the ECHR on granting
authorization to adopt to non-heterosexual people. E.B. v. France
overturned Frette v. France, establishing that refusing to grant adoption
licences to gay, lesbi an, and bisexual appli cants is against the
provisions of Article 14 (in conjunction with Article 8) of the European
Convention. In FretteÂ,anadoption licence was not granted to a single
gay man due to, notably, `lack of scientific consensus' on the advis-
ability of child rearing by non-heterosexuals. In E.B.,itwas established
that prejudice against sexual minorities had `contaminated' the
reasoning of the French administrative courts. The cases are considered
from a sociological viewpoint, stressing that it is of vital importance to
look at the non-legal expertise, knowledge, and theories referred to.
Because of the politicized nature of the issue, scientific consensus or
lack of it cannot be considered the final yardstick, and judges and
decision-makers are faced with an inevitable political choice.
INTRODUCTION
Since they were established in the 1950s, the European Commission of
Human Rights and the European Court of Human Rights have interpreted the
provisions of the European Convention on Human Rights relating to a vast
array of disputes in family law. Considerable political and legal change has
taken place throughout Western and Northern Europe in recent years and has
536
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*Department of Sociology, P.O. Box 35, 00014 University of Helsinki,
Finland
linda.hart@helsinki.fi
I wish to thank Professors KevaÈt Nousiainen and Riitta Jallinoja for support and
inspiration and Outi Anttila, Anne Maria Holli, Johanna Kantola, Anu PylkkaÈnen, and
Milja Saari, as well as Marie-BeÂneÂdicte Dembour, Jackie Jones, and three anonymous
referees for commenting on this paper. My gratitude also goes to the Kone Foundation
and the Brusiin Foundation for funding my research.
contributed to the emergence of same-sex unions (same-sex marriage and
different forms of civil partnerships) and possibilities of recognized family
formation by non-heterosexuals through assisted procreation and intra-
familial and extra-familial adoption. The European Court can be expected to
articulate its position on these matters as relevant cases are introduced to the
ECHR machinery. So far, the most substantial step towards the recognition
of family formation by non-heterosexuals in the ECHR has been taken in the
field of individual adoption in the judgment E.B. v. France in January 2008.
There, it was established that if member states allow single people to adopt,
adoption licences cannot be refused for individual applicants on the basis of
their sexual orientation.
Case material from the European Court has been studied and analysed
widely by legal scholars. However, judgments and decisions given by the Court
can provide immensely interestingdataforlegal sociology and
multidisciplinary human rights studies.
1
This article provides an example of
how case material from the European Court can be analysed from a socio-
logical perspective, shifting the focus from the analysis of legal argumentation
to the deployment of non-legal expert knowledge and underlying theoretical
assumptions. The judgments analysed here were filed against the French
government and concerned the suitability of non-heterosexual individuals to
obtain an authorization to adopt children as single applicants. The first is Frette
Â
v. France, where a single homosexual man was denied such authorization by
the French social services and administrative courts.
2
When delivering the
judgment in February 2002, the European Court ruled in favour of the French
government, giving it a broad margin of appreciation on the question of
whether to grant authorization to adopt to non-heterosexual people.
This judgment was overturned six years later by the Grand Chamber
judgment of E.B. v. France in January 2008. This marked a considerable
shift in the case law of the European Convention regarding the possibilities
of non-heterosexual people to recognized forms of inter-generational family
relations.
3
What is interesting in comparing the two cases is the rapid shift in
the Foucauldian `epistemic context',
4
as Joseph Rouse would have it, of the
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1Anexcellent example of this is Who Believes in Human Rights? by Marie-BeÂneÂdicte
Dembour, both a lawyer and an anthropologist. Dembour analyses selected ECHR
case law from realist, utilitarian, Marxist, particularist, and feminist perspectives, and
shows that besides administrative efficiency and sanctioning states parties in their
human rights commitments, the institutionalization and proceduralization of human
rights can have adverse effects. Those who can afford the material and personal costs
of seeking justice from a supranational court tend to be the ones who benefit from its
existence. See M.-B. Dembour, Who Believes in Human Rights? Reflections on the
European Convention (2006).
2Frette
Âv. France, no. 36515/97, ECHR 2002-I.
3E.B. v. France [GC], no. 43546/02, ECHR 2008- .
4J.Rouse, `Power/Knowledge' in Cambridge Companion to Foucault, ed. G. Gutting
(1994) 95, at 93.
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