a thorny legal debate and few lawsuits

The trial date has not yet been set. But it is probably before the end of the year that the criminal court of Laon (Aisne) will judge Myriam (assumed name), a mother prosecuted for two cases of surrogacy (GPA). “He is a psychologically fragile person, who had a difficult childhood. Even if there were financial counterparties, my client first did this out of altruism, ”says her lawyer, Me Cyrille Bouchaillou.

It was in 2014 that Myriam, already a mother of four children, began to consult forums presenting testimonies of infertile women. “I said to myself: ‘Why not help them achieve their dream?’ “, she confided on March 10 to the newspaper L’Union de Reims. After leaving her details on the site, Myriam was contacted by a couple and she agreed to be the surrogate mother for €15,000. This agreement led, in 2016, to the birth of a little girl given to the couple. But things will not go the same way for the second GPA, engaged the following year by Myriam with another couple.

A report to the prosecution

This time, a hospital will report to the Laon public prosecutor’s office, which will open a judicial investigation after which Myriam was indicted, on the basis of article 227-13 of the penal code. “Voluntary substitution, simulation or dissimulation having caused an attack on the civil status of a child is punished by three years’ imprisonment and a fine of €45,000”, provides this article. The four “intended parents”, the two couples who participated in the surrogacy, were also indicted for provoking the abandonment of children.

It is difficult to know how many surrogacy are practiced on French soil. “There are probably a lot of cases that go under the radar. The rare cases that end up in court are, in general, those where a disagreement has arisen between the woman and the intended parents”, indicates Me Adeline Le Gouvello, lawyer for the association Juristes pour l’Enfance. In fact, in 2013, the Saint-Brieuc criminal court sentenced a 32-year-old woman to a fine of €5,000 who had engaged in surrogacy before deciding to keep the child. The two intended parents were fined €5,000.

In 2016, the Blois court sentenced a “surrogate mother” to a one-year suspended prison sentence for fraud, and the intended parents to a fine of €2,000. The case was a bit special. This woman had committed at the end of 2012 to a surrogacy project with a homosexual couple from Toulouse for €15,000. After the delivery, she told them that the child was stillborn. Which was wrong. The baby was alive and well, but the woman had “offered” it to another couple, again for €15,000. Justice then discovered that this woman had used the same scheme the previous year with two other couples.

“Provide a qualification relating to human trafficking”

At the time of the trial, the association Juristes pour l’Enfance deplored that this woman had been prosecuted for a simple fraud. “It is an incrimination which refers to deception concerning property. There, we were still talking about the sale of children! “, protests Me Le Gouvello, considering that, in these surrogacy cases, it is on the basis of article 227-13 that the proceedings must be initiated, as in Laon. “But we should probably go even further and provide a qualification relating to human trafficking,” said the lawyer.

This case, judged in Blois, had interesting legal consequences. As part of the GPA initially undertaken with the Toulouse couple, the surrogate mother had been inseminated with the sperm of one of the two men of this couple. But in the end, the child had been declared to the civil registry as being the son of the man of the second couple, the one with whom the woman had done business later and who had picked up the baby at birth. The Toulouse sperm “donor” did not want to stop there and took legal action to have the paternity of this child recognized, of which he was the biological parent. He won his case in 2017 before the Dieppe court before the Rouen Court of Appeal ruled against him.

A case decided by the Court of Cassation

She had considered that the best interests of the child, “in view of his history, is not necessarily to see his current filiation modified to be the son of his biological father, while his present life, with the spouses ( …) who have been raising him since birth in apparently excellent conditions, seems to be in his interest”. The Toulouse “biological” father had also broken his teeth before the Court of Cassation, which had highlighted article 16-7 of the civil code providing that “any agreement relating to procreation or gestation on behalf of others is zero”.

It is this nullity which, for the Court of Cassation, made this recognition of paternity inadmissible. ” It’s very interesting. This shows the willingness of French justice to do everything to discourage the practice of surrogacy. In this file, we put aside the biological truth in the name of the interest of the child, just because he had had a contract of GPA”, explains Jean-René Binet (1), professor of law at the Faculty of Law of Rennes.

---

Source

---