Seized by several courts, the Court of Cassation validated the adoption of children born by medically assisted procreation (MAP) abroad.
Children born abroad by assisted reproduction will now be able to have two parents. In a long-awaited decision, the Court of Cassation, in fact, considered that recourse to assisted reproduction abroad, by artificial insemination with an anonymous donor, “does not prevent the mother’s wife from adopting the child thus conceived. “.
The highest French court had been seized by two high courts, one in Poitiers, the other in Avignon. The judges preferred not to rule on the application for adoption of a child born by PMA abroad by a gay couple, considering the law too vague.
What does French law say?
Only infertile heterosexual couples can resort to assisted reproduction. But the law on marriage for all opened the right to adoption to same-sex couples, without commenting on the question of assisted reproduction. In addition, the government has given no enforcement instructions to the prosecution.
As a result, decisions may vary from court to court, but in practice most of them grant same-sex couples the right to adopt children born abroad by assisted reproduction. According to a study commissioned by the Chancellery in mid-July, out of 295 referenced decisions, 281 courts gave the green light.
On the other hand, nine adoption procedures were refused. The judges considered that having recourse to assisted reproduction abroad amounted to circumventing French law and thus constituted “a fraud against the law”. Today, the Court of Cassation says precisely the opposite. Through this judgment, it “thus draws the consequences of the law of May 17, 2013 [sur le mariage pour tous] “, Which opens the adoption to homosexual couples” without any restriction relating to the mode of conception of this child. “
What are the consequences of such a decision?
The decision of the Court of Cassation is an advisory opinion, not binding, even if it should strongly influence future decisions. It is made available to judges to remedy legal gaps linked to a new question of law.
In a press release, Christiane Taubira underlined that “these opinions will put an end to several months of legal insecurity for homoparental families” and “will promote a harmonization of case law. Adoption is now clearly open, in all its forms, to all married couples ”.
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