From Fretté to E.B.: The European Court of Human Rights on Gay and Lesbian Adoption

23 Pages Posted: 22 Mar 2016 Last revised: 17 Aug 2017

See all articles by Kathleen Doty

Kathleen Doty

University of Georgia - Dean Rusk International Law Center

Date Written: 2009

Abstract

European nations, while progressive in many areas pertaining to gay and lesbian family law, have been slow to recognize the rights of gay individuals or same-sex couples to adopt children. In January of 2008, however, the European Court of Human Rights (ECHR) held in E.B. v France that France violated the Convention for the Protection of Human Rights and Fundamental Freedoms when it denied a lesbian woman permission to adopt a child. Only six years earlier, the Court decided Fretté v France, holding on virtually identical facts that France's denial of a gay man's application to adopt did not violate the Convention. The implications of EB. v France remain unclear, but this sea change in the ECHR's jurisprudence warrants consideration.

Part I of this Article will provide background on the applicable provisions of the Convention and the jurisprudence of the ECHR. Part II will explore the holding of E.B. v France, and whether it overruled prior precedent. Part III will consider what happened between the decisions that shaped the outcome of E.B., and Part IV will discuss the potential effect the ECHR's decision may have on the legislation of other European States in relation to gay, lesbian, bisexual and transgender (LGBT) people.

Keywords: E.B. v France, gay, lesbian, family law, European Court of Human Rights, adoption, bisexual, transgender, LGBT, Convention for the Protection of Human Rights and Fundamental Freedoms, Fretté v France, parenting

JEL Classification: K29, K33

Suggested Citation

Doty, Kathleen, From Fretté to E.B.: The European Court of Human Rights on Gay and Lesbian Adoption (2009). Law & Sexuality, Vol. 18, 2009; University of Georgia School of Law Legal Studies Research Paper No. 2016-13; Dean Rusk International Center Research Paper No. 2016-06. Available at SSRN: https://ssrn.com/abstract=2753115

Kathleen Doty (Contact Author)

University of Georgia - Dean Rusk International Law Center ( email )

100 Herty Drive
Athens, GA 30602-6018
United States

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