Can a French woman who goes to Canada to resort, alone, to surrogacy (GPA), an illegal practice in our country, be recognized on her return as the mother of the child even though the child has been conceived by gamete donations and brought into the world by a surrogate mother? « Oui »responded the Court of Cassation in a judgment of November 14 which will set a milestone and case law, considering that the absence of a biological link between the woman and the child “does not conflict with any essential principle of French law”.
The affair, confusing to say the least, began with the birth on December 8, 2019 of little E. in a maternity ward in the Canadian province of British Columbia. A birth following a surrogacy agreement, in other words a contract concluded between the so-called intended future mother, Mrs. S., and the surrogate mother, Mrs. U.
A return to France where everything gets complicated
In this document, it is specified: one, that the child will be conceived by in vitro fertilization with sperm and oocytes from third-party donors; two, that the embryo will be implanted in the uterus of Mrs. U. and, three, that Mrs. S. will have, after childbirth, exclusive custody of the child and all parental rights with regard to him. On February 1, 2021, a decision from the Supreme Court of British Columbia confirmed the validity of its provisions and logically declared Ms. S. “legal mother of the child”.
But things become complicated when the latter, back in France, asks the French justice system to recognize the filiation established abroad even though GPA is a procedure prohibited in France and there is no biological link between her and the child.
Which does not prevent the Paris Court of Appeal from recognizing, on April 18, 2023, the validity of the Canadian judgment. And this under the so-called procedure to execute which can lead France to enforce a foreign court decision as long as it does not result from fraud and is not contrary to French public order. Considering that these two conditions were met, the Parisian court will therefore consider that the Canadian judgment is equivalent, in France, to a plenary adoption.
This was without taking into account the public prosecutor who decided to appeal to the Court of Cassation, arguing that under the terms of article 16-7 of the civil code “any agreement relating to procreation or gestation on behalf of others is void” and that consequently the decision of the court of appeal had to be considered contrary to French law.
In the name of the best interests of the child
An argument which does not convince the Court of Cassation which has just confirmed, by its judgment of November 14, the recognition of the filiation link. To justify its decision, the court develops two main arguments. Based on the case law, consistent since 2015, of the European Court of Human Rights, it first argues that the illegality of GPA in France should not prevent the recognition of an established filiation link. abroad, in the name of the best interests of the child.
Above all, she considers that French law can fully recognize the existence of parentage outside of any biological link as is the case, for example, for children born from IVF with two third party donors or when a man recognizes a child without being its progenitor. Hence his decision, in the present case, to maintain the recognition of filiation between Mrs. S. and little E.
On the other hand, contrary to what the Court of Appeal had admitted, the Court of Cassation considered that filiation established by Canadian law could not be assimilated, in France, to a full adoption. Which does not take away any rights from the mother, but which illustrates, once again, the difficulty for French justice to establish a clear doctrine on the matter.
