An editorial in the Nouvel Observateur unpicks a tangled web of legal ramifications arising from legislation on gay marriage, adoption and ART, suggesting that the three issues are misrepresented when treated together.
Article source: "La confusion des genres", Claude Weill, Le Nouvel Observateur, 10/01/2013
The ongoing reform has triggered numerous confusions and fantasies.
Here is a step by step analysis of the bill, and the legal minefield it represents.
Whether in favour of same sex marriage or opposed to it, one can not fail to be struck by the number of vague, illusory, or wrong impressions the debate throws up. Activists for and against the bill fuel the confusion by acting as if marriage, adoption and Assisted Reproductive Technology (ART) were inextricably linked: a package deal. This is not at all the case, however. On the contrary, in order to assess the effects and the stakes of the reform, we must examine the three sections of this false triptych independently.
Marriage
This is the simplest issue. Once the reform is passed, there will be one single model of marriage, equally available to same sex or different sex couples, with the same restrictions, the same rights, and the same responsibilites.
Adoption
Here, things start to get a bit more complicated. Distinctions need to be made...
For future children, who are not yet adopted, married homosexuals will be able to adopt under the same conditions as any other married couple: the partners must have been married for at least two years, live together and both be aged 28 or over. It is that simple…except for two caveats:
- One does not need to be married in order to adopt. Marriage and adoption are dealt with separately in the Civil Code. Presently, “any person aged 28 or over” can ask to adopt. Contrary to what many people think, therefore, legally speaking homosexuals do have the right to adopt; and there is no shortage of examples.
- If the law is introduced, the change will allow them to adopt ‘together’, so that the child can have ‘two daddies’ or ‘two mummies’. Bearing in mind that there are very few children available for adoption in France, however, and that the countries and institutions that ‘manage’ adoption are extremely wary of entrusting children to gay couples, many people are likely to be disappointed…
Where existing children are concerned, same sex marriage will bring a major change for gay married couples: they will be entitled, just like any other married people, to adopt their partner’s child and thus officially become the ‘second daddy’ or the ‘second mummy’. So the reform will provide a legal framework for what is already in place. But there is a caveat that applies to all couples: to proceed with a plenary adoption, the other parent, the one with whom the child was conceived, must either be deceased, have been deprived of parental authority, or never have legally established their parental status. Children will not be permitted to have three parents. Basically, if for instance a lesbian already has a child conceived in a former marriage, or with a friend who has officially acknowledged the child, the new partner won’t generally be able to adopt.
Here again, many gay couples will be disappointed, those who hope the reform will put an end to what they denounce as an injustice: “I’ve raised that child, I consider him as mine, but legally speaking, we are strangers to each other and, should we separate or should my partner die, I have absolutely no parental rights.” A painful situation, but one which has nothing to do with sexual orientation. It concerns every couple in which, following a divorce or a death, a partner (married or not, it makes no difference) finds themselves in the position of raising a child who isn’t biologically their own. What is being questioned here is not homosexuality but the lack of status of the step-parent. In this era of ‘reconstituted’ families, there is a pressing need for something to be done about this. The bill on the family, planned for Spring, ought to tackle the issue.
ART (Assisted Reproductive Technology)
This is the most sensitive issue, both legally and morally. As a result, it’s the most controversial. Gay rights groups are campaigning for the law on marriage to include ART for same-sex couples. The socialist députés have approved the measure in principle, without going into any detail. But, as the law stands, access to ART has nothing to do with marriage. It is not even regulated by the Civil Code, nor by the Public Health Code.
Presently, ART (techniques allowing in vitro fertilisation, the conservation and transfer of embryos and artificial insemination) is regulated in two different ways:
- It is explicitly reserved for couples consisting of one man and one woman, whether married or not.
- Its purpose is to find a solution to medically diagnosed infertility in a couple, or to prevent transmission of a serious illness either to the child or to one of the members of the couple.
What one law has joined together, another may put asunder. This right could well be extended to same-sex couples. But the matter isn’t that simple. If a link is made between entitlement to ART and marriage, as the PS legal advisors have been considering, there are two major pitfalls. Either being married becomes a condition for access to ART, which would be a retrograde step for unmarried heterosexual couples, and would not be at all in keeping with evolving social mores. Or else unmarried straight couples would retain the right to ART while gay couples would have to be married. Thus creating discrimination based on sexual orientation, something entirely contrary to the spirit of the reform.
So, the sensible solution would be to allow any couple, married or not, to have access to ART. This does not fall within the scope of the “mariage pour tous” law. Bioethics laws would need to be modified. In that case, if the model of 1 man + 1 woman and the matrimonial framework were to be put aside, how could the denial of ART to single women be justified? After all, they already have the right to adopt and to have children!
The question of medical intervention throws up even thornier issues. Lesbianism is not a medical condition. The great majority of lesbians are neither infertile nor do they carry communicable diseases. If, for the sake of equality, they are made to fulfill the same conditions as other couples, most of them will de facto remain barred from ART and they will have to carry on going to Spain or Belgium to be inseminated. Of course, exempting lesbians from meeting these requirements is not an option: as a result, heterosexual women would end up with fewer rights, which would be equally discriminatory and probably unconstitutional. Common sense would therefore seem to suggest that the medical diagnostic requirement be lifted for all couples, regardless of their sexuality. This would mean reconsidering one of the pillars of bioethics law, which, and not without good reason, was intended to restrict ART to cases of disease or infertility. At the very least this deserves more thought.
This ART conundrum has definitely become a headache for PS députés, caught between a legal minefield and their own political disagreements. Many would be relieved to see the government retake the reins and come back to the Assembly in Spring with a sound text, in the broader framework of the family bill. Three months would not be too long to wait.
Translation: Sophie Kowalczuk and Stéphane Devos
Editing: Sam Trainor