by Lionel Lesur and Lisa A. Linsky1
On 23 April 2013, the French Parliament gave final approval to a bill allowing same-sex couples to get married and adopt children. This makes France the 14th country in the world to legalize marriage between same-sex couples, and the 9th in Europe. Law No.2013-404, approving marriages between same-sex couples, was signed into law by the French President on 17 May 2013 and published in the Official Journal on 18 May 2013.
Law No.99-944 legalizing civil unions (the pacte civil de solidarité or PACS) in France was introduced in 1999. This law has allowed same-sex and different-sex couples to enter into civil union agreements and has conferred to them many, but not all, of the rights of marriage. Among other things, the PACS denies same-sex couples the right to adopt children.
On 7 November 2012, Christine Taubira, French Justice Minister introduced to the Council of Ministers a draft bill aimed at giving same-sex partnerships equal status with heterosexual marriages. The bill split public opinion. While the French predominantly favored marriage between same-sex couples, they were more evenly split on the matter of same-sex couples’ adoption of children. Thousands of opponents demonstrated in France and continue to do so, mainly to protest the bill’s provision for adoption rights for same-sex couples.
The issue of parenting and procreation rights as raised in the draft law was deeply divisive in opinion polls and among politicians. The opponents to the bill feared that Law No.2013-404 would result in the introduction in France of further laws allowing medically-assisted procreation or IVF in-vitro fertilization (IVF) to lesbian couples and pave the way for gestational surrogacy, which is currently prohibited.
The draft bill was taken up by the French Parliament and intense debates took place. More than 5,000 amendments to the bill were introduced before the draft law was finally adopted on April 23 by a 331-225 vote.
On 28 May 2013, both Decree No.2013-429 implementing Law No.2013-404, and a ministerial order amending the standard family record book, were published in the Official Journal. The country’s first same-sex wedding took place in Montpellier on 29 May 2013.
Law No.2013-404 grants same-sex couples living in France, including foreigners provided at least one of the partners has his or her domicile or residence in France, the right to get married. It also allows the recognition in France of same-sex couples’ marriages that occurred abroad before the enactment of the bill.
Article 143 of the French Civil Code now states that “marriage can be contracted by two persons of opposite sex or of the same sex”. Law No.2013-404 also enables same-sex couples to adopt children through both the mutual adoption of a child and the adoption of the same-sex partner’s biological or adopted child. That said, the French Constitutional Council, in its 17 May 2013 decision on the draft bill, added that Law No.2013-404 does not, however, grant to couples any “right to children” and that any adoption should be carried out with the “child’s interests”.
The provisions related to the passing on of parents’ surnames, which provided previously that the father’s name is the default surname, have been modified to prescribe that, unless decided otherwise by the parents, the child will bear the surname of both his or her parents.
Law No.2013-404 still, however, leaves key issues on family rights unsettled. According to the Law, it will now be possible for same-sex couples to exercise parental authority jointly, provided the partners get married and the child is adopted by one of the spouses. To date, same-sex couples, including couples who entered into civil union agreements, were denied the right to adopt a child together. Even though it was possible for single people, including gay men or lesbians, to adopt a child, a person could not adopt his or her same-sex partner’s adopted or biological child.
Law No.2013-404 does not allow access to medically-assisted procreation or IVF to lesbian couples. As the law stands, only different-sex couples suffering from medically-diagnosed infertility, or couples for whom there is a proven risk of transmitting a severe and incurable genetic disorder to the child or to one of the partners, are eligible for medically-assisted procreation or IVF.
These issues are expected to be addressed in another bill relating to family that is expected to be introduced later this year or early next year.
French Constitutional Council Decision
On 23 April 2013, the opposition conservatives and centrists appealed to the French Constitutional Council in order to challenge the compatibility of Law No.2013-404 with the French Constitution, which caused the postponement of the enactment of Law No.2013-404. Under French law, a bill can be referred to the Constitutional Council to obtain the Council’s opinion before its enactment, provided the Council is requested to do so by the French President, the French Prime Minister, the President of the National Assembly, 60 members of the National Assembly or 60 senators. If the Council declares a bill unconstitutional, it cannot be signed into law by the French President.
The petition filed with the Council concerned the nature of marriage, adoption and parenting and the passing on of parents’ surnames to children as these issues relate to same-sex couples. Law No.2013-404’s opponents especially complained that adoption of children by same-sex couples would compromise the equality of treatment between adopted children, as some of them would thereby be deprived of the “right” to have both a mother and a father.
While conservative and centrist members of Parliament argued that sexual difference between spouses is a basic principle recognized by the laws of France, the government proponents who championed the bill commented that there is no principle set by the French Constitution according to which only opposite-sex couples are entitled to marriage. Consequently, the French Government argued that the law may amend the French Civil Code provisions defining the qualifications and conditions required for contracting marriage.
On 17 May 2013, the French Constitutional Council ruled that the draft Law No.2013-404 did not violate the French Constitution in any manner.
The Impact on French Labor Law
A question raised by Law No.2013-404 is the extent to which it will impact different fields of law such as divorce, inheritance and property law, and employment and benefits rights.
Law No.2013-404 allows same-sex couples to receive the same benefits as those that used to be granted only to different-sex couples. Most of Law No.2013-404’s provisions will be adopted by way of orders of the government, so same-sex couples will be entitled, for example, to family-related leave (such as marriage leave) and to the payment of a reversionary pension. This will consequently have a rather significant financial impact on companies as, for example, costs resulting from family-related leave are borne by employers.
Law No.2013-404 also modifies the French Social Security Code regarding adoption leave benefit by amending the section that provided adoption-related leave to women only. Additionally, provisions relating to the calculation of quarters in connection with pension benefits (assurance vieillesse) are impacted to now include same-sex couples that have adopted children. Specifically, the number of quarters that are taken into account when calculating pensions is increased for couples that have adopted children. As a result of Law No.2013-404, married same-sex couples will now also benefit from this provision.
Moreover, Law No.2013-404 gives gay and lesbian employees the right to refuse to be transferred to any country that criminalizes homosexuality, notably Afghanistan, Iran, Mauritania, Saudi Arabia, Sudan and Yemen, where homosexuality is punishable by death. In principle, mobility clauses inserted into employment contracts require the employees to accept any transfer consistent with their current employment assignments. If the employee’s refusal is deemed illegitimate, this can be a basis for a termination for cause of the employment contract. Under Law No.2013-404, any sanction or dismissal against an employee who refuses such a transfer because of his or her sexual orientation will be null and void in accordance with Article L.1132-4 of the French Labor Code.
Law No.2013-404 confirms a trend in Europe to promote marriages of same-sex couples and the fact that France, as a founding Member State of the European Union, now also allows same-sex couples to marry may accelerate this trend and contribute to its extension beyond Europe.
1Lionel Lesur is a partner in the Paris office of McDermott Will & Emery LLP specializing in corporate and antitrust law. He is also an active member of the firm-wide Lesbian, Gay, Bisexual, and Transgender (LGBT) Diversity and Inclusion Committee.
Lisa A. Linsky is a partner in the Trial Group of McDermott Will & Emery, LLP based in New York, with a practice focused on complex commercial litigation, business investigations and civil rights work. Lisa is also the Firm’s Partner-in-Charge of LGBT Diversity and Inclusion and chairs the Firm’s LGBT Diversity Committee.