While same-sex parenthood is now becoming more and more the norm, several choices are available to these families who wish to carry out their parenthood project. Whether through co-parenting, PMA/GPA or adoption, gay or lesbian couples now have the possibility of realizing their project of becoming parents.
But despite this desire for parenthood, reality unfortunately imposes itself on them very quickly when starting a family. Indeed, the legislative apparatus is not advancing at the same pace as society, which is why the status of the legal parent still has a long way to go in order to achieve equal rights between heterosexual couples and couples gay or lesbian.
What is the social parent?
Let’s start by defining who the social parent is. He is called spouse, but also second parent or intended parent. He is therefore the spouse of the surrogate mother in the case of a lesbian couple or the spouse of the parent in the case of a gay couple. The main problem that therefore arises for the social parent is that he has no biological ties with the child he is raising or will raise.
What does the law say about the rights of the social parent?
In the eyes of the French State, the social parent is not recognized as a legal guardian and has, in fact, no right towards the child or children of his or her spouse, even if he participated in the same way in the parental and educational project.
This wavering of the law creates an important legal vacuum which can have dramatic consequences in the event of separation between the spouses or on the death of the biological and/or legal spouse; the social parent finding himself in a Kafkaesque situation vis-à-vis the child he has raised, but over which he no longer has any rights.
On the other hand, there are a certain number of possibilities to be recognized in the eyes of French law.
Be recognized as a social parent
In order to be recognized in the eyes of French law, there are several possibilities in order to be considered as a social parent:
Plenary adoption: it consists of removing the bond of filiation with the biological parents to create a new bond of filiation with the adoptive parents. This is the preferred solution in the case of a lesbian couple, the newborn child having only one legal parent, the sperm donation being covered by anonymity.
Simple adoption: unlike full adoption, it allows two separate parentage ties to coexist. This will be the case for a gay couple using surrogacy. The surrogate mother is considered a legal parent. In this case, only simple adoption can be requested.
A long way of the cross for homoparental families
Like the informal status of a father-in-law or a mother-in-law in the case of a blended family, the social parent is not always officially recognized by 100% of the courts, as court decisions may vary from court to court. This is why it can be complicated to obtain the sesame of legal guardian although in fact, the social parent assumes the same responsibilities as the biological parent, without however being the guardian of parental authority.
As you have understood, the path to becoming a parent for a same-sex couple is not easy, but there is hope with advances such as the law noh 2013-404 of May 17, 2013 which henceforth opens up marriage to same-sex couples by allowing them to adopt the child of the husband or wife, the two spouses thus fully sharing parental authority.
As you have understood, conversely, not being married as a same-sex couple makes it difficult to obtain parental authority for both members of the couple. We will now have to patiently follow the legislative developments in France and hope that the legislator will push in the direction of a clear and precise recognition of the social parent in the eyes of French law.