No Human Right to Adopt? Gay and Lesbian Adoption Under the ECHR

Abstract

The article aims to shed light on the European Court's somewhat muddled approach to adoption, both in relation to admissibility and to the merits of applications that raise adoption-related issues under the ECHR. It is divided in three parts. In the first part, I argue that there should be no strict rule against the admissibility of applications that challenge the compatibility of adoption laws and practices with the ECHR. There may be circumstances under which the state's failure (or refusal) to grant someone adoptive status may amount to a violation of the ECHR, in virtue of principles the Court has already given effect to. My argument turns on a broader claim that questions about the ambit of Convention rights, usually examined at the admissibility stage, are in fact disguised and elliptical propositions about the substantive rights of the ECHR, which are normally examined at the merits stage.

In the second and third part I turn to an analysis of two landmark ECHR judgments on discrimination and adoption, Frette v France (2002) and E.B v France (2008). I argue that the way in which the European Court collected judges' votes in Frette constitutes a case of judicial paradox and that a different decision-making process could have resulted in a ruling of a violation. The paradox consists, in short, in the fact that only one judge (out of seven) endorsed the majority reasoning in its entirety, which most importantly contained the finding that rejecting an application for authorization to adopt on the grounds that the applicant is homosexual does not constitute discrimination. Finally, I turn to the Court's substantive reasoning in E.B v France, which is often seen overturning Frette, and argue that the Court rightly reached this conclusion by employing a standard of review that best captures the moral principles underlying human rights.

Keywords: European Convention on human rights, adoption, discrimination, judicial reasoning, margin of appreciation, proportionality