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Individual Adoption by Non‐Heterosexuals and the Order of Family Life in the European Court of Human Rights
Author(s) -
Hart Linda
Publication year - 2009
Publication title -
journal of law and society
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.263
H-Index - 48
eISSN - 1467-6478
pISSN - 0263-323X
DOI - 10.1111/j.1467-6478.2009.00482.x
Subject(s) - yardstick , convention , lesbian , order (exchange) , law , authorization , prejudice (legal term) , compensation (psychology) , human rights , politics , political science , sociology , psychology , social psychology , business , gender studies , geometry , mathematics , computer security , finance , computer science
This article analyses two judgments by the ECHR on granting authorization to adopt to non‐heterosexual people. E.B. v. France overturned Fretté v. France, establishing that refusing to grant adoption licences to gay, lesbian, and bisexual applicants is against the provisions of Article 14 (in conjunction with Article 8) of the European Convention. In Fretté, an adoption licence was not granted to a single gay man due to, notably, ‘lack of scientific consensus’ on the advisability of child rearing by non‐heterosexuals. In E.B., it was established that prejudice against sexual minorities had ‘contaminated’ the reasoning of the French administrative courts. The cases are considered from a sociological viewpoint, stressing that it is of vital importance to look at the non‐legal expertise, knowledge, and theories referred to. Because of the politicized nature of the issue, scientific consensus or lack of it cannot be considered the final yardstick, and judges and decision‐makers are faced with an inevitable political choice.