Following a law change in 2013, homosexual couples in France are allowed to adopt but remain barred from using IVF. A few French courts had thus refused adoption rights to couples who had gone overseas for fertility treatment in order to conceive, saying that such couples were 'defrauding the law' by their actions.
In their decision, senior judges rejected that argument, saying that 'although there may be added conditions, in France this medical practice [IVF] is allowed. Therefore, the fact that some women went abroad for it does not damage any principle of French law'.
Caroline Mécary, the lawyer for a couple whose adoption process had been put on hold subject to this decision, told the Libération newspaper: 'This is an excellent decision. But it is really just a reminder that how a child is conceived is irrelevant in adoption, as long as that the adoption process itself is undertaken in accordance with the law'.
Although the ruling is advisory and not enforceable, the Court of Cassation's decisions are normally heeded by lower courts.
The judgment has been criticised by politicians and commentators opposed to the 2013 'Taubira law' - named after the Minister of Justice who saw it through - which legalised same-sex marriage and adoption. Many see it as a stepping stone to the legalisation of surrogacy, which is currently outlawed in France and strongly opposed by a large, socially conservative section of the population.
Hervé Meriton, an MP for the centre-right opposition party UMP, told Le Figaro: 'We are now locked into a chain of events where gay marriage leads to adoption which leads to assisted conception. The court's decision even gives us a glimpse of the potential legalisation of surrogacy'.
'The only way to extricate ourselves from this spiral is to withdraw the Taubira law', he added.
Since the law was passed, French courts have handled 295 applications from same-sex couples looking to adopt children born after assisted conception overseas and only nine had been turned down.
The ruling comes three months after French courts were forced into granting citizenship to children born via surrogates overseas after a decision at the European Court of Human Rights (see BioNews 761).