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3 The Jurisprudential Forum There are countless degrees of scientific accuracy, but the law is either entirely present or entirely absent. —Bruno Latour, La Fabrique du droit1 Adoption brings into play a set of disparate institutions from child welfare agencies to the social services administration via regional governments, local courts, and administrative tribunals, all driven by very different— indeed, opposing—interests and modes of socialization and symbolic reward .These institutions converge in the world of jurisprudence where they test their visions of society. The courts thereby provide a vantage point from which the field of adoption can be surveyed. How do judges react in the face of newly emerging configurations of the family? Are they always explicit about the values that influence and underpin their rulings? How are conflicts of interpretation between national and European jurisdictions resolved? In addition to specifically jurisdictional stakes, the intense media coverage of family-related issues has influenced how judges themselves reason—contact with the way various political and social movements think has prompted the court system to confront and modify itself. It is therefore important to analyze social uses of law and the increasingly juridical aspect of social practices simultaneously.2 In this chapter I will review French and European jurisprudence on adoption issues from the standpoint of gender, analyzing the question of cohabitation, the status of single individuals, the sexual orientation of applicants for approval, and recognition of paternity in cases of anonymous relinquishment (along with its impact on the infrangible nature of full adoption). Recognizing Emotional Ties Although the issue of sexuality is raised primarily in terms of parenting abilities within the context of the administrative process of approval, 48 Chapter 3 it is also related to adoption on an entirely different level, namely the consecration of existing emotional ties, whether those ties concern the couple, stepparents, or a recomposed family following the death of the parents. In the case of simple adoption, the judge must look to the interest of the adopted child and make sure that the adoption is not being diverted from its original purpose; the French Code Civil therefore requires a minimum age difference between adopter and adoptee (Art. 344) and above all prohibits marriage between “the adopter, the adoptee and his or her descendents (Art. 356 pertaining to full adoption, Art. 366 pertaining to simple adoption). On those bases, judges have clarified the outlines of adoption, permitting a sister’s full adoption of her brother3 and grandparents’ simple adoption of a child whose mother had died.4 The courts have rejected this latter type of adoption, in contrast, when inheritance gain seemed to be the primary goal.5 Furthermore, if the child’s interest prevails, a simple adoption may be granted even when one or several members of the child’s family objects, on the condition that the child is not taken too far from them.6 As such, the existence of family ties prior to adoption does not exclude the possibility of adoption, but it is always up to the judge to assess whether the goal of the adoption petition is to skirt another legal statute and whether existing family life will be adversely affected, notably when the adoptee is not already living in the adopter’s home.7 Here I will discuss two situations in which the judges assessed the existence of a “family life” and the possibility of its recognition through adoption. One situation concerns the consecration of cohabitation via simple adoption, while the other concerns the transfer of parental authority between partners of a civil union or legal cohabitation, one of whom adopts, or wishes to adopt, the biological children of the other, also via a simple adoption. Legal Cohabitation In 1989 the Cour de Cassation (high appeals court) refused to grant same-sex couples the status of concubinage (legal cohabitation).8 The 1999 law legalizing civil unions, or PACS, was a direct response to that ruling. It authorized not only a civil contract open to all couples, but also legal cohabitation: “Legal cohabitation is a de facto union characterized by a shared, stable, continuous life between two people of the same or different sex, who live together as a couple.”The PACS law thus freed homosexual couples from the need to employ adoption as a way to celebrate their union and facilitate inheritance arrangements. Such situations had been the object of numerous criticisms.9 Yet a decision by the Cour de [3.141.100.120] Project MUSE (2024-04-25 07:44...

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