If social and political conservatives tend to be more cautious about Pan-European institutions than those on the left, this week provided another example why. The European Court of Human Rights overturned French court rulings that prevented a single lesbian woman from adopting a child. The decision sets a precedent not just across the 27-nation European Union, but throughout the 47-member Council of Europe. Gay and lesbian groups say it opens the way for legal challenges in other European states with adoption laws similar to those of France yet falls well short of a blanket ruling that would oblige all countries to allow adoption by homosexuals.
In a 10-7 vote, the Strasbourg-based court ruled Tuesday that a plaintiff identified only as Emmanuelle B. had been the victim of illegal discrimination when successive French authorities denied her request to adopt a child in 1998. The court faulted the French courts for citing "the lack of a paternal referent in the household", and said the woman's homosexuality had been "if not explicit, at least implicit" in France's rejection of her adoption request. The Court judged France had violated the European Convention on Human Rights to which France and the other 46 Council of Europe members are signatories by failing to assess adoption by a lesbian the same way it would a single heterosexual.
"French law allowed single parents to adopt a child, thereby opening up the possibility for adoption by a single homosexual," the judgment found. The judgment forces France to allow Emmanuelle B., a 45-year-old nursery school teacher who has lived with her female partner for nearly 20 years, to adopt, and orders France to pay $14,600 in damages and $21,210 in legal costs.
Gay rights organizations in France and across Europe hailed the ruling for taking on one of the main kinds of discrimination homosexuals continue to face. Some conservatives, however, were equally outspoken in condemning the decision. Michèle Tabarot, a member of parliament for the ruling conservative Movement for a Popular Majority, and the president of France's Superior Council on Adoption, said "the judges are overstepping their role by going beyond what the law says, and by imposing their conception" of justice. Tabarot also noted that French rules allow singles to adopt in order to open more homes to orphans, not to present a position on gay parenting. "In France the parliament never sought to open adoption to homosexuals," she noted.
Indeed, Tuesday's ruling, in many ways, represents a back door to equal treatment. Franck Tanguy, spokesman for France's Association of Gay and Lesbian Parents, says "this ruling is a step in the right direction" in that it "requires countries that, like France, allow singles to adopt children to treat unmarried homosexual and heterosexual applicants in exactly the same manner." Failure to do so in any country with such legislation, Tanguy says, means they'd "find themselves condemned again and again for discrimination by the many single homosexuals who'd use this precedent to base a legal defense on". However, Tanguy regrets the ruling "won't change anything in countries that don't allow any singles to adopt, nor force nations that don't allow homosexual couples to adopt to change their laws".
Nine European countries currently permit gay and lesbian couples to adopt children: Germany, Belgium, Denmark, Spain, Iceland, Norway, the Netherlands, the U.K., and Sweden. Tuesday's ruling may be a boon for single homosexuals seeking to adopt children where unwed heterosexuals are allowed to do so. But Tanguy says it may also cause countries to shelve any plans to allow straight unmarried couples to adopt in order to keep gays and lesbians from doing the same.