Gestational Surrogacy: the European Court of Human Rights condemns France

On June 26, 2014, the European Court of Human Rights (ECHR) issued two judgments condemning France after its refusal to transcribe the birth certificates of children born in the US from gestational surrogacy onto French civil registers, arguing that this measure harms children’s identity. These judgments do not force France to legalize Gestational Surrogacy (GS), but they imply that France acknowledges the consequences in terms of parentage and civil status in France of an act performed abroad.

The complainants, the Mennesson and Labassee Couples, filed an appeal after the French Cour de Cassation had dismissed the case as non-receivable on April 6, 2011. The Court had indeed considered contrary to public order the foreign decision to recognize GS, since it involves “provisions which infringe on the key principles of French laws.”

The ECHR examined whether the refusal to transcribe the birth certificates of those children in the French civil registers breaches Article 8 of the European Convention on Human Rights (which guarantees the right to the respect of private and family life.) It concluded that there was no violation of the rights of the claiming parents, but a violation of the children’s rights concerning the respect of their private life.

The children were born in the United States to surrogate mothers via egg donation: they have American birth certificates which identify the Mennesson and Labassee spouses as their parents, according to the transaction with the surrogate mother. The Court underlines that: “France’s refusal to acknowledge parentage between children born abroad from GS and the couple having recourse to this practice is based on the willfulness to discourage its nationals from using a method of procreation that has been banned on its territory, intended to preserve children as well as the surrogate mother involved.”

The ECHR notes that “The complainants do not assert that the obstacles to which they were confronted were insurmountable” and that they also benefitted to the right of having their family life respected. However, it considered that the court refusal showed the “serious compatibility issue of this case” with the superior interest of the children. Even though they had been considered abroad as the couple’s children, they “were now in a situation of juridical uncertainty.” The ECHR invoked the importance of acknowledging the biological connection in order to “essentially define their identity” and condemning the “troubling uncertainty” regarding the ability to obtain the nationality of their French biological father, “an uncertainty that can deeply affect the definition of their own identity.” Likewise, they would not be legal inheritors from the spouses Mennesson and Labassee, except as legatees which is less favorable in terms of succession rights, and constitutes “another element of parentage identity” which are denied to those children.

The State Secretary for the Family declared that the French Government has no intention of appealing although it does have the possibility to do so. These verdicts come just after an appeal was filed by a group of lawyers with the State Council against the Taubira Report dated January 25, 2013. This report instructs the attorney-general and chief clerks to deliver French citizenship certificates to children, anytime a parentage with a French citizen can be established thanks to a conclusive foreign civil act, and stipulates that a mere suspicion of having had recourse to GS abroad cannot justify denying delivering citizenship.

According to Alliance VITA, this decision risks to jeopardize French law, which prohibits GS, and could weaken the necessary dissuasion of procreative tourism, which seriously violates the rights of women and children. It is even more paradoxical and contradictory as it invokes the need to preserve the biological connection, paternal in this case, while the process of artificial procreation totally destroys the maternal biological bond. By not appealing the decision, the government de-facto ruins the practical scope of prohibiting GS.

Programming the birth of a child according to a contract, which ascertains that the child will be taken away from the woman who carried and gave birth to him, does not respect the rights of the child. A ‘shared’ maternity fragmented between two or three women (the biological mother, the surrogate mother and the educating one) is very unfair to the child. Equally, it is an injustice for surrogate mothers whose work resembles slavery, incompatible with their dignity. Those who have had recourse to this practice abroad have an immense responsibility: without denying the need of the children involved of having a clear civil status, erasing their turbulent past is disrespectful of them and is equivalent to government-sponsored lies.

Neither for capital punishment nor for other practices contradictory to Human Rights, should France adopt transgressive laws of the lowest ethical level possible.

Gestational Surrogacy is prohibited in France and it is sanctioned under the penal Code.

Article 227-13 of the Penal Code punishes by 3 years of imprisonment and a fine of 45,000 € “the intentional substitution, simulation or dissimulation causing a breach in the civil status of a child,” or any attempt to do so. Article 227-12 of the Penal Code punishes any incentives to abandoning a child, interaction in view of adoption, and since the bioethics laws n° 94-653 of July 29, 1994 relating to the respect fo the human body, “any interaction between a person or a couple willing to adopt a child and a woman willing to bear a child with the intent of giving him away.” Furthermore according to article 444-4 of the Penal Code “False entries in public or authentic documents or in a recording asked by a public authority is punished by 10 years of imprisonment and a fine of 150,000 €.

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