Adoption by Same-Sex Couples: Full or Simple Adoption, What Does the Court Say?

Imagine a couple living in Anglet, married for three years. One of them has a child from a previous relationship, and both wish for the second parent to adopt the child to formalise their family. But which procedure to choose: full adoption, which severs all ties with the other biological parent, or simple adoption, which maintains dual filiation? This question, fundamental for hundreds of families, has just been decided by the Montpellier Judicial Court. The decision of 2 April 2025 provides clarifications on the rights of married same-sex couples and the conditions of co-parenting. Let us analyse together what it concretely means for you, parents or future parents, in Pau, Anglet or elsewhere.

The facts: a story that happens every day

Mr X and Mr Y, a married couple of men in Pau in the Pyrénées-Atlantiques, have a child born by surrogacy (GPA) abroad. The child is registered in the French civil registry as the son of Mr X, the biological father. Mr Y, the spouse, wishes to adopt this child to establish a legal filiation link. But the question arises: should this adoption be full (replacing any previous filiation) or simple (adding to the existing filiation)? The couple brings the case before the Montpellier Judicial Court, as the family's place of residence falls within its jurisdiction.

The public prosecutor opposes full adoption, arguing that the child already has a filiation established with his biological father, and that full adoption would cause the child to lose his inheritance rights vis-à-vis his family of origin. The couple, for their part, insists on the need to secure Mr Y's place as a parent, and on the fact that the surrogate mother has no legal link with the child. The court must therefore decide: which form of adoption is most in the child's best interest?

The reasoning of the court — dissected

The judges first recalled the legal framework. Full adoption, governed by Articles 343 to 359 of the Civil Code, confers on the child an exclusive filiation with the adopter, extinguishing the original filiation. Simple adoption, on the other hand, is provided for in Articles 360 to 370-2 and allows the two filiations to be combined. In this case, the court considered that the child's best interest required maintaining the link with his biological father, while recognising the spouse's place. It therefore authorised simple adoption, allowing Mr Y to adopt the child while preserving the filiation with Mr X.

Why this decision? The judges considered that full adoption, by erasing the link with Mr X, would deprive the child of part of his history and his inheritance rights on the paternal side. However, nothing justified this rupture: Mr X fully exercises his parental authority, and the child lives with both his fathers. Simple adoption, on the contrary, creates a balanced co-parenting: the child has two legal fathers, with all the rights and duties that entails. It is a pragmatic solution, consistent with recent case law which favours the child's best interest in diverse family configurations.

What this changes for you — concretely

If you are a married same-sex couple and wish to adopt your spouse's child, this decision directly concerns you. Henceforth, know that the court favours simple adoption when the biological parent is still present and exercises his responsibilities. Concretely, this means you can obtain dual filiation without losing existing inheritance rights. In Pau, for example, a couple in this situation can have the second parent recognised as adoptive father, while preserving the child's rights to inherit from his biological father and his extended family.

For biological parents, this is security: you do not lose your legal link with the child. For adopters, it is a consecration: you officially become a parent, with parental authority, maintenance obligation, and reciprocal inheritance rights. However, note: simple adoption is not automatic. You must obtain the consent of the biological parent, unless he is deceased or has been deprived of his rights. And in any case, a court hearing is necessary. Timelines? Allow 6 to 12 months on average, depending on the complexity of the case.

Four tips to avoid this type of dispute

• Consult a specialised lawyer before any steps. A professional will guide you on the type of adoption suited to your situation. In Anglet, Maître Perucca receives you for an initial assessment.
• Obtain all written consents. The biological parent must formalise his agreement by notarial deed or before the court. Without this, the procedure may be blocked.
• Anticipate inheritance consequences. In simple adoption, the child inherits from both his biological parents and his adoptive parent. Plan testamentary dispositions if necessary.
• Prepare a solid file. Gather civil status documents, proof of cohabitation, and any document demonstrating the child's best interest in being adopted.

Further reading: related case law and developments

This decision aligns with a trend favouring simple adoption for same-sex couples. The Court of Cassation, in a judgment of 4 July 2018 (No. 17-50.038), had already validated full adoption for a child born by surrogacy abroad, but only when there was no pre-existing filiation with a biological parent. Here, the Montpellier court goes further: even with an identified biological parent, simple adoption is favoured to preserve ties. Other courts, such as the Paris Judicial Court, have sometimes opted for full adoption when the biological parent was unknown or absent. The trend is clear: judges seek to balance the child's rights and family reality. In the future, we can expect harmonisation by the Court of Cassation, perhaps towards the generalisation of simple adoption for same-sex co-parenting.

Frequently Asked Questions

Does simple adoption grant parental authority to the adoptive parent? Yes. Simple adoption confers parental authority on the adoptive parent, jointly with the biological parent. You therefore share all educational rights and duties.

Can I adopt my spouse's child if we are not married? No. Adoption of the spouse's child (Article 345-1 of the Civil Code) is reserved for married couples. If you are in a civil partnership or cohabiting, you must go through a classic full or simple adoption, which is more complex.

What happens if the biological parent refuses to consent? In simple adoption, the consent of the biological parent is mandatory. If he refuses, you can attempt full adoption if you can show a manifest disinterest or deprivation of parental authority. In any case, the court assesses the child's best interest.

What is the cost of an adoption procedure? Lawyer's fees vary between €1,500 and €5,000 depending on complexity. Court costs (stamp duty, bailiff) are around €300. In Pau, a €45 consultation with Maître Perucca can help you assess your situation.

Can the child keep the name of his biological parent? In simple adoption, the child can keep his original surname and add that of the adopter, or bear both surnames hyphenated. This is decided in the judgment.

Are you in a similar situation? An initial 30-minute consultation with Maître Perucca (€45) can save you months of procedure — and often much more. Book an appointment →