European Court of Human Rights Punishes France for Refusing Gay Adoption

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It seems that when you sign an international pact, you never know what the court established thereunder will come up with after a couple of decades. In case of France, that means being forced to allow homosexual adoption.

Some time ago, courts dealt with observance of law. These days, it looks like courts deal with what's right or wrong basing on their understanding of concepts like discrimination.

Some time ago (Tysiac v. Poland), the Court came up with abortion under the right to privacy. Now it's forcing gay adoption on France. Those courts, especially the international ones, can get quite out of line when they don't get a sizeable collection of actual laws to base rulings on.

Link

 

Here's the official ECHR press release: http://cmiskp.echr.coe.int/tkp197/v...t=43546/02&sessionid=4867441&skin=hudoc-pr-fr . It's interesting, thanks for pointing it out.

First, a minor clarification: the above is a verdict by the European Court of Human Rights. The court is affliated with the Council of Europe, an international organization that strives for pan-European integration and the safeguarding of human rights, ideals and cooperation. These organizations are distinct from the EU or its own legal organ, which is the European Court of Justice, although they often work together. BTW, Chev - thanks for giving me a chance to refresh my Euro-fu. I desperately needed that.

Anyway, the court decision itself was rather confusing. Discrimination on the basis of sexuality was prohibited by the European convention, which pretty much all countries of the Council of Europe have ratified. Single adults, as I understand, can adopt children in France. If this woman was refused, and if the main factor for that was her sexuality, this sure looks like discrimination to me. I'm not sure French law makes a distinction between homo- and heterosexual people in this case; if it doesn't, the court does have a point. Of course, the whole thing is fuzzy as the ECHR had to decide if the French courts took the woman's sexuality into account or not, which is a matter of speculation.

However, Chev, there's one thing that goes somewhat against your statement: as the PR shows, the French courts themselves had argued that the denial was due not to the woman's sexual orientation, but her lifestyle status, arguing that the child would not have a good "“identificational points of reference” due to the absence of a paternal image or reference and the ambiguous nature of the applicant’s partner’s commitment to the adoption plan." Thus, the French side did not contest that adoption falls outside of the "right to privacy" clause, instead arguing that the woman's lifestyle, rather than sexual orientation, presented a problem. OTOH, that doesn't seem like a good idea logically, as the part about lacking a paternal figure should apply to any single woman who would adopt a child.

Personally, I'm surprised that the complaint was regarded as a breach of article 8, which is the right to private life, and not article 12, which is the right to marry and have a family, but maybe it's just me. Anyway, I don't think French courts will comply with this ruling in the next 3-4 years, but that's another story - after all, this woman put the case before the ECHR as far back as 2002. Still, it's surprising that she gets awarded 10 thousand Euro, but the decision says nothing about the courts having to allow her to adopt

BTW, if anyone is interested, the Convention is here: http://www.hri.org/docs/ECHR50.html . It's based on the UN one, iirc with some minor changes. Article 14, which France was found in breach in, states that "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." .

 

If she isn't allowed to adopt the child, it can be a further violation in the eyes of the court, meriting another trial. The 10K covers the past, but not the future.

 

If that's true, then it shouldn't matter what her sexual orientation is at all. If she was straight, the child would still not have a paternal point of reference if she didn't have a husband/boyfriend.

 

Single people may be single for various reasons and sometimes they will marry at a later time.

Also in case of a gay couple vs a single parent, there's not only the lack of a mother or father, but there's also a counter-figure. A distorted image of mother or father - or a father-father or mother-mother model. That harms the child. No interests or even rights of a person override the rights of a child he wishes to adopt. Someone's wishes of pretending to be a normal family may not take precedence before a child's right to normal development. Somehow ability to adopt is being made into a human right, but the right to normal development is not recognised.

 

Cavemen.

 

Having been outed by Tal recently (cheers boss ) I just have to stick my two penneth into a gay debate.

chev, I have to object to your rather uncharacteristic murder of the word "normal" in that sentence. There is no such thing as a "normal" family, and quite frankly with the state of the world at the moment where thousands of children are born out of wedlock every day to parents too young, immature or stupid to raise them properly, I say that people willing to do it right should be encouraged.

Having children is a human right because in a nutshell, caring for young is the very purpose of our being. Children do not discriminate their parents, to quote from "Silent Hill" the movie "Mother is God in the eyes of a child." This applies not just to mother figures where there's both a mother and a father in their life but any parent who is willing to love them and teach them right from wrong. The bottom line of this argument is don't try to superimpose your personal feelings on this matter onto an argument that it would be in some way detrimental to the child.

The fact is, people put far too much importance on being gay. They think that gay is who a person is, not what a person is, where that's just not true. Gay is who you have sex with and nothing more. It doesn't dictate how you act (although a large number of insecure gay people would argue the toss about that), and it certainly doesn't dictate whether you're a fit or unfit parent. As far as sleeping with people goes, such things should be cloaked from young children regardless of sexuality, meaning the child should and would know no different until they were old enough to understand.

Flame gay people for acting camp, or for having a chip on their shoulder, I don't care, but don't presume to dictate that gay people don't make good parents. I intend to adopt a child one day and he or she will lead a perfectly "normal" life as far as the child and its two fathers would be concerned.

So there

</rant>

 

First of all, well said Uri.

Secondly:

And what would be wrong with a father-father or mother-mother model? Just because people are to close minded to look outside the "normal" mother-father model to consider anything else being equally as beneficial to the child.

 

I think the point it the verdict is justified is pretty much irrelevant to be honest. The European Court of Human Rights is out of order and jumping to the role of the legistlative. Something it most certainly should not do. The court should exist to ensure the basic human rights written under the UN declaration and while I haven't ever bothered to read through the whole thing I doubt it contains a mention of gay adoption. There have been several complaints about our conscription laws sent there too, the European Court of Human Rights needs to be cut down to just the basics of its purpose. It is not supposed to dictate to sovereign nations their legistlation.

 

It doesn't need to specifically mention gay adoption, though. If the human rights charter protects homosexuals from discrimination, that is precedent enough.

 

Absolutely correct. That's why, in my initial post, I asked whether or not France allows single poeple to adopt children. If the answer is yes, then it is completely irrelevant what the sexual orientation of the parent(s) are. Even if single people were not allowed to adopt, it would not necessarily stop this woman if gays are allowed to be legally married in France (although I have no idea what the marriages laws of France are).

In the U.S., there are many states that have laws on the books that essentially agree with Chev's viewpoint. While they can't write a law stating that "gays can't adopt", they can write a law restricting adoption to married couples - which many states do. Since gay marriage is only allowed in Masachusettes (and New Jersey has approved civil unions) restricting adoption to married couple effectively eliminates gays from being able to adopt in most states.

 

The European Convention of Human Rights as far as I know avoids taking any stances towards gay rights. Gay marriage is purposely left out because of its controversy. I'm sure they have some sort of legal basis for this or they would not bring it up. Just than when gay rights are so obviously avoided in these documents to keep certain countries satisfied it's rather disturbing to see the court override these political decicions. It's almost starting to act like the US supreme court and that's not a compliment.

 

@Morgoroth: while the ECHR is more famous with its rulings in other spheres, iirc it has had a few decisions on the gay rights issues as well. IIRC Article 14 under the convention has been used to base such statements on. Actually, I think one of its rulings was the basis of the repeal of the Ireland anti-sodomy law in the 1980s, and in Cyprus or Malta in more recent years.

 

Firstly, the court is entering into legislative competence. Basically, it seems what whatever is remotely regulated by the legislation is subject to interpretation by courts as they see fit. And if something isn't regulated in any law, courts will still rule by equity. Either way, courts do as they see fit unless there's a culture of restraint and respect for the division of powers.

Now, for gay adoption. Everyone knows that children take after parents. I do not need to prove that children who are brought up as a single parent lack the point of reference which the other parent constitutes. Boys growing up without fathers have a hard time becoming men themselves and they're (nearly) forever at disadvantage when dealing with women. Daughters without mothers, or women otherwise brought up by men, also lack the role model. I think we have this straight. If someone believes otherwise, he can believe the sun won't rise tomorrow, too.

Now, we have established that a missing mother or father puts a dent in a child's proper development. So what if we put a second motherly or fatherly figure instead of the complement? There is no more the gap which could be realised and filled somehow. There's a distorted image in which it's a normal family between two men or two women, adopting. If you'd ever heard a several year old child asking his mother, "Mum, what's a daddy? Is that a man who visits a child every week?" you wouldn't be asking questions like what it will make if two men or two women are to raise a child as if it were a normal family.

Moreover, it is not yet certain whether there is a gay gene. Also, people still agree that isolated behaviours of a homosexual nature do not make one a homosexual, right? Therefore it means there is orientation and there is behaviour. At least some homosexual behaviours are learnt and the individuals are heterosexuals or bisexuals simply finding homosexual sex somewhat entertaining or having fallen into the habit. And where exactly do children learn such behaviours? They watch mum and dad. Same problem as with a single mum or dad exists here - just worse.

And what if there's actually a gay gene and the orientation cannot change? Then a heterosexual child - and since by far most people are heterosexual, by far most children are heterosexual too - will be exposed to homosexual behaviours and will learn those behaviours in the house, without learning behaviours proper to his orientation. Identity crisis, anyone? Let alone romantic dysfunctions and severe reduction of the ability to raise a normal family.

Further, on what is based the claim that homosexuals should be able to adopt children and raise them in homosexual unions? It's based on the rights of the individual wanting to adopt, or more strictly speaking, some aspects of his alleged right to pursuit of happiness and fulfilment.

But since when does the pursuit of happiness of a grown adult trump the corresponding right of a child? Since when is a gay person's desire to raise a child in an illusion of a family more important than the child's right to the same - pursuit of happiness, unimpeded by being forced into a ton of personality issues including problems at the core - identification? Also, the same which the gay people are seeking - a family, may quite likely be denied to that child who'll have grown up in such circumstances. In short, that doesn't fly.

If you really want to read a lot of what you'd perhaps consider proof of the obvious things that I mentioned above (which feels like proving the grass is green), perhaps this book might interest you. It's written by a committed liberal, so you can't really say it's biased. Here.

Some online resource:

http://www.lifesite.net/ldn/2005/may/05053106.html
http://www.nationalreview.com/interrogatory/interrogatory041202.asp
http://www.christian.org.uk/pressreleases/2002/october_15_2002.htm
http://www.lifesite.net/ldn/2004/apr/040428c.html
link

Mother and father is natural. That is coded in our nature. Depriving someone of it, for the sake of maintaining fiction that mother and mother or father and father is normal, so that someone could feel better, is cruel and does no good. Maybe you don't seem homosexual patterns being ingrained in a child as a wrong, but I do.

 

Is being a ward of the state natural, Chev? Seriously, there are more kids in need of adoption than there are people willing to adopt them. A loving, homosexual couple is a lot better than no one at all any day of the week.

While we're on the subject...you are aware that Monogamy isn't natural, either, right? Throughout human history, monogamy has been the exception and not the rule. Men are biologically driven to be interested in sex with multiple partners. Even in the bible, early humans weren't monogamous. Should we go ahead and dispense with monogamy, too, since it isn't natural? Of course not. Being unnatural and being immoral are not the same thing.

Simply being gay is not the same thing as "ingraining homosexual patterns". While children of gay parents are slightly more likely to be gay, the vast majority of children raised by gay parents turn out to be heterosexual...for a reason. Being gay (or straight) isn't actually a function of who your parents find attractive. It's a function of who you find attractive. I'm not heterosexual because of my parents. I'm heterosexual because I'm not attracted to other men!

 

Now this simply can't be true. If it were what would have been the point of some French group trying to smuggle children for the adoption markets in Europe? Or why in general adoption is a pain to get no matter how good of a parent you are. In principle just being wheelchair bound makes it difficult to get adoption in Finland. Of course getting adoption from abroad is a bit easier but from what I've been constantly hearing not even that's very easy.

When talking about anti-sodomy laws we are going to downright persecution which is one thing, gay adoption is a very different and more controversial issue. I doubt Malta or Ireland were protesting that much about those decisions either. I fully agree with Chev's statement about the courts stepping to the role of the legistlative organs, which it should not. Countries like Poland have signed these laws in faith that they won't intervene on their policy on homosexuality and so sentences like this clearly go against the spirit that law was made in. Laws written in such a constitutional manner as the ECHR(the convention) will allways be subject for several forms inteprentation to make them adaptable to different countries and different policies. It was made to preserve the rights that allready exist not to create new ones everytime the court finds a new way of inteprenting the law. That is the duty of the legistlative and that's where the court is now stepping its foot in. So on that regard I shockingly have to agree with chev.

EDIT: Just to be clear, I'm in full agreement that the French stance on this is not right. However I don't live in France so its up for the French to make the change. Change though should not be brought fourth through a court but through a political process. Also I find it very disturbing that both the convention and the court is shortened ECHR, making it all a bit confusing.

 

In the case of infants, there are certainly plenty of waiting families. Once the kids get just a little older, though, there are far more kids bouncing around the foster care system than there are parents looking to adopt. Sure, lots of people want to adopt, but they are looking for an infant or a very young child. They aren't looking for seven year olds taken from their abusive fathers.

 

Ah ok, didn't consider older kids. In that case I fully agree.

 

Incidentally, there is a whole plethora of scientific evidence that homosexuality is genetic and as such, physically impossible to "ingraine" into a child. The child may be slightly more effeminate or masculine, but this does *not* have any bearing on their sexuality.

Also I think you are portraying children as pathetic shells that have no free will of their own. Their primary source of learning acceptable behaviour is indeed their parents, but this child will be going to school, interacting with other children with what you call "normal" families, and will certainly not be asking such stupid questions as "what's a daddy?"

I seem to recall a thread not long ago with a child singing a song called "I have 2 fathers", and he certainly didn't seem disillusioned about his 2 paternal figures. Don't patronise the children by assuming they're dumb and wouldn't learn any different, and certainly don't fall into the trap of thinking that gay parents make gay children. That's utter nonsense, and indeed I fully believe that the children of same-sex couples are some of the most caring, tolerant and open minded individuals I've ever met.

On a side note, I also have a problem with this comment:

I don't believe that's true at all, like I said there are teachers and other masculine figures that the child will latch onto and take as a role model in almost every situation, and often they will choose a much more acceptable father figure on their own than the true father which they get no choice in.

So there (again )