Komentarz (w j. angielskim) autorstwa Julie Renou do rozstrzygnięcia francuskiego Sądu Kasacyjnego w sprawie uznania orzeczenia amerykańskiego sądu, który uznał za pełnoprawnego adopcyjnego drugiego rodzica lesbijkę - partnerkę biologicznej matki dziecka. Francuski Sąd Kasacyjny uchylił niekorzystne decyzje sądów niższych instancji i uznał, że pomimo, iż francuskie prawo nie przewiduje możliwości adopcji dziecka przez pary nie będące małżeństwem, decyzja sądu amerykańskiego nie jest sprzeczna z francuskimi wartościami, głównie z wartością jaką jest dobro dziecka.    

Mrs. B and Mrs. N are two women living in a same-sex relationship. B is a French citizen living in America, in the state of Georgia. N is a U.S. citizen, living with her eleven year-old daughter, who was conceived through artificial insemination. B. was able to adopt the little girl as a second parent through a court order of 10 June 1999 in DeKalb County, Georgia. This established the child's parentage with two moms; her "Organic " American mother, and her adoptive mother, from France.
In 2007, B asked the Tribunal de Grande Instance (High Court) of Paris to recognize the adoption order as having effect on French territory. The Tribunal refused to grant the request. B then launched an appeal which failed after the judge found that under French law, adoption by an unmarried couple is liable to cause the loss of parental authority for the first parent. Thus in this case, the judge found the adoption order would be contrary to the interests of the child because it would deprive the biological mother of her rights.
On 8 July 2010 the Court of Cassation overturned and repealed the Court of Appeal’s judgment, and ordered the enforcement of the original U.S. decision. This decision does not seek to apply French law to foreign judgments, but rather to recognize the effects of foreign decisions on French territory, provided that such a decision is not contrary to the principles of the French international public policy,  in this case, the interests of the child. The Court of Cassation found that even if in France parental authority in cases concerning unmarried couples may only be granted to one parent, the fact that in the United States legislation grants this right to both unmarried parents does not render it contrary to the interests of the child, quite the contrary. This is the first decision of this type adopted by a French court, and is therefore a decision of principle.

What is the significance of this case?

At a juridical level, this case is merely a simple application of the rules of enforcement. The real benefit of this decision is political. Indeed, the court accepts that an adoption made abroad, of the child of the biological mother by a second parent, is recognized on French soil. This means that now, for French judges, a child may have same-sex parents. It is a revolution in the area of family relationships, which puts into question the Adoption Act of 1966, which had allowed adoption by either married or unmarried people.
The Court of Cassation altered French law, which had previously held that the notion of "parents" applied only to heterosexual couples. This decision touches on a sensitive and controversial political debate.  The issue is now open to legislative action – often a time-consuming process. The judge highlighted the limits of the current law given the evolution of society and social mores. Such judicial activism is not new in French law, and many areas of law have evolved in this way. If indeed the court is overstepping its role of "mouth of the law ", it is because it is often better placed than legislators to assess the quality of existing law. The law as it stands is the Courts’ daily working tool, and therefore judges are best placed to report back to the legislature on the law’s shortcomings.
This willingness of the Court to evolve the law in this regard is strengthened by two other recent related cases. Case No. 12143 concerns whether article 365 of the Civil Code (which allows adoption only by married people or unmarried people, thereby constituting one of the main obstacles to adopt for homosexuals) is discriminatory. The claimants in that case argue that this article violates the right to found a family and the right to have a normal family life. The Court of Cassation, considering the reviews admissible, initially questioned the constitutionality of such an article. This test of constitutionality was unprecedented, so the Court suspended judgment pending resolution of this question of constitutionality by the Constitutional Council. In a decision of 6 October 2010 (decision No 2010-39 QPC), article 365 was found to conform with the Constitution. This despite the fact that on 31 August 2010 (31 August 2010, Gas and Dubois vs. France, No. 25951/07), the ECHR declared admissible the application of two women who argued article 365 of the French Civil Code violated their right to privacy and family life (Article 14 in conjunction with Article 8 of the Convention). For now the case is pending, but the decision of the ECHR may influence the legislature to amend the law by following the way opened by the Court of Cassation.
These three cases exemplify a trend in the Court of Cassation, in favor of same-sex parenting. At this stage of the debate, the ball is in the legislature’s court. The choice appears to be between taking responsibility and changing the law to help parents, or continuing to remain silent and witness the multiplication of similar decisions until the system is no longer tenable.

The limits of the case?    

However, it is necessary to mention two qualifications. The first is that this evolution in the law may be invoked only by bi-national gay couples. French homosexual couples, being governed by the Adoption Act, are not affected. Therefore, it creates a kind of discrimination against French same-sex couples, who are treated worse than those of more than one nationality. Secondly, there exists in France a similar case in the field of gay marriage. That is, homosexual couples officially married in another country are recognized as spouses, even though same-sex marriage is prohibited in France. Despite the hopes that this case represented, the situation has not changed, and the gay marriage is still prohibited as confirmed by the jurisprudence of the Court of Cassation (for example see case of 13 March 2007).
In conclusion, we must recognize that this daring jurisprudence of the Supreme Court gives a breath of hope in the field of gay parenting. This decision will need to be strengthened however, by future decisions of the ECHR in this regard. However, it is necessary to keep in mind that it is the legislature, not the judge, who makes the law, and everything depends on the willpower of the latter. The various issues concerning homosexuality, even if they occupy more space in the public debate, remain marginal in the face of issues such as pensions or the economic crisis. As a result the pace of legal change is slow. Changing the mentality is a long process, but we believe in it!

Julie Renou