If France has banned surrogacy since 1994, it cannot prevent its nationals from going to a country which authorizes it to use a “surrogate mother” in order to have a child. Which raises the thorny question of the status in French law of these children.
On this subject, two judgments rendered on October 2 by the Court of Cassation could decisively evolve the case law regarding recognition, by France, of a parentage established under foreign law. “A double decision which will further amplify the normalization of GPA in our country, even though the process remains expressly prohibited, as confirmed by the bioethics law of August 2, 2021”underlines Jean-René Binet, professor of law at Rennes 1 University (1).
Intended parents and legal parents
To understand the ins and outs of this issue, we need to go back to basics. A GPA can take different forms depending on the origin of the gametes used to conceive the child but, in all cases, it is stipulated by contract that the woman who carries it will hand it over, at the end of her pregnancy, to the sponsors.
However, if the country of birth will establish filiation according to local law, upon their return to France, these so-called “intended” parents will have to initiate a specific procedure if they wish the child to benefit from an act of French civil status.
“The most used procedure until recently was the request for transcription of the foreign document in the French registers. A procedure that has even become almost automatic since France was condemned in 2014by the European Court of Human Rights for refusal of transcription in the Mennesson and Labassée cases”, specifies Professor Binet.
The 2021 law restores order
The bioethics law of 2021 will put things in order by specifying in article 47 of the civil code that the regularity of the foreign act must be “appreciated under French law”. Result: the transcription of a foreign civil status certificate for a child born through surrogacy is now limited to the biological parent alone, the other having to go through an adoption procedure. Which opens up a number of disputes.
To get around the obstacle, intended parents are increasingly resorting to the so-called procedure ofexecution. “This consists of asking French justice to recognize and execute a foreign court decision, specifies Jean-René Binet. In terms of GPA, a couple who have obtained an act establishing them as parents abroad will use this judgment to assert this same right in France. »
This is what the two couples of men whose cases are the subject of the recent judgments of the Court of Cassation did. The first had filed an appeal after the Paris Court of Appeal refused himexecution of a Canadian court decision declaring the two men “legal fathers” . In the second case, it was the Attorney General who appealed against a decision of the same Paris Court of Appeal which had considered that filiation established by Californian law was equivalent to recognition in France of a plenary adoption by the intended couple.
Implicit recognition of GPA
In the first case, the couple’s appeal was rejected, because the Court of Cassation considered that the foreign judgment was not sufficiently “reasoned” to be recognized in French law, in particular because the consent of the surrogate mother could not be verified. In the second, the Court of Cassation overturned the decision of the Court of Appeal, finding that the recognition of legal parents could not produce the effects of a full adoption.
It remains to be measured, over time, the impact of these decisions. “On the one hand, the Court of Cassation sets a certain number of conditions for the application of the principle ofexecutionwhich may seem like a good thing. On the other hand, it recognizes that, provided that these formal guarantees are established, a GPA agreement concluded abroad can have effects in France even though article 16-7 of the civil code specifies that “any agreement relating to on procreation or gestation on behalf of others is void. deciphers Jean-René Binet.
A contradiction which illustrates the hesitations of French justice on this question, caught between the prohibition of a practice considered by French law as “unethical” and the desire not to penalize children.
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GPA around the world
In France, surrogacy was prohibited by the law of July 29, 1994 relating to respect for the human body.
GPA is authorized in most states in the United States as well as in Canada, but also in Ukraine, Albania and Georgia. In Europe, it is legal in Denmark, the Netherlands and Greece.
When it is legal, the terms vary from one country to another. Some, like Israel, reserve surrogacy for their nationals. Others, like South Africa, only authorize so-called “ethical” surrogacy, that is to say without financial compensation for the surrogate mother.
In France, where there are no official figures concerning births by GPA, this number is estimated at 200 or 300 per year.
(1) Author of Bioethics law, Ed. LGDJ, 2nd edition (2023), 390 p., €39.