In France, the conditions of adoption are governed by the Civil Code and in particular its article 343. The latter stipulates that“Adoption can be requested by two spouses who are not legally separated, married for more than two years or both over twenty-eight years”. In fact, adoption as a couple has long been reserved for heterosexual spouses, the only ones authorized to unite by marriage.

Same-sex couples wishing to adopt were then faced with different issues:

• As adoption (abroad or from a ward of the State) is open only to married couples or to a single person, only adoption by one of the members of the couple was possible. The problem: without joint adoption, parentage was only legally recognized between one of the partners and the adopted child.
• Similarly, the law did not allow a member of the couple to adopt the child of their spouse of the same sex (from, for example, a previous union). The only solution was then, under the law, the delegation shared parental authority, which did not create, again, no parentage.
• Children born from medically assisted procreation performed abroad (ART for same-sex couples is prohibited in France) were linked in civil status to the mother who had given birth. However, the second partner could not claim any bond of filiation.

When it was promulgated in 2013, the law opening marriage to same-sex couples (known as the marriage law for all) turned the situation upside down by making marriage accessible to same-sex couples. In fact, same-sex spouses authorized to marry were, at the same time, in compliance with the provisions of the Civil Code relating to adoption.

Please note, however, that couples, whether of the same or opposite sex, cannot legally adopt together unless they are married. Partners in civil partnership or cohabiting must therefore, in the current state of the law, adopt alone.

Same-sex couples have the same rights and obligations as other adopters. They must therefore, except in cases of exemption, first obtain adoption approval. Once the famous sesame has been obtained, they are authorized to initiate adoption procedures in France or abroad.

Intercountry adoption by same-sex couples, however, remains extremely complex. Indeed, the process of adoption abroad must, to be successful, respect both French law, the Hague Convention on the protection of children and cooperation in matters of intercountry adoption, but also local law. . However, at present, the vast majority of States signatory to the convention exclude same-sex couples from the right to adoption. Only a few countries (South Africa, Brazil, certain states in the United States) are open to it, effectively partitioning off access to parenthood (abroad) for these couples.

Again, the rights for all couples are the same. Homoparental adoption can therefore:

• be simple: This framework, which preserves the previous filiation ties for the child, first and foremost allows one of the spouses to adopt his spouse’s child, provided that he has obtained the prior consent of both biological parents.
• .be plenary: with full adoption, the historical bonds of filiation of the adopted child are replaced by new bonds born of adoption. Legally, this framework therefore allows same-sex couples to jointly adopt a ward of the State or a child abroad. In practice, however, this second procedure remains impossible for the time being (see above).

French case law has also recognized the right to full adoption for couples of women who have given birth following assisted reproduction carried out abroad. Even if, for the moment, this procedure is not enshrined in the law, nearly 95% of the courts seized in these cases responded, in 2014 already, favorably to the request of the mothers.

In Canada, the right to adoption by homosexual couples was first recognized by the province of Ontario in 1995, following a case law recognizing the right of 4 women to adopt the child of their spouse. The provinces of British Columbia, Alberta and Nova Scotia then followed until 2011 when adoption by same-sex couples became legal across the country.