Jurisprudence by the French Court of Cassation for Gestational Surrogacy

  On Friday June 19, 2015 the Court of Cassation in France examined appeals relating to two children with French fathers, born in Russia via Gestational Surrogacy (GS). These procedures were carried out abroad to circumvent the ban imposed the French Law. On April 15, 2014 the Court of Appeal in Rennes, refused civil registration for the first child, but granted it to the second on December 16, 2014. Until this point, the Court of Cassation, France’s highest supreme court had rejected appeals to register children born to surrogate mothers abroad, in its civil registries. In its judgment of June 16, 2014 on the Mennesson and Labassée cases, the European Court of Human Rights (ECHR) condemned France of violating children’s right to privacy. The Court held that “by thereby preventing not only the acknowledgement but also the establishment of parentage in regard to their biological father, France has gone beyond what is permitted by its margin of appreciation.” The Court concluded that the children’s rights with respect to their private lives had been breached, in violation of Article 8 of the European Convention on Human Rights. The grounds invoked were the “confusing uncertainty about the possibility of being able to receive the French nationality,” and the ability to inherit from their “parents, as purchasers of Gestational Surrogacy.” Regarding the issue of nationality, children born via GS always have a nationality, generally the one of the country in which they were born. Then, when they arrive in France, the French nationality can requested and obtained. Before 2013, attribution of French nationality was obtained after five years of residency. Since January 2013, the Taubira Circulaire now applies and the French nationality for the children is granted in the name of the French nationality of their parents, purchasers of GS. The inheritance issue has been resolved by a letter written April 13, 2015 by the Civil Affairs and Seals Directorate (DACS) to the president of the Superior Council for Notaries (Conseil Supérieur du Notariat) recognizing children born through GS as legitimate heirs. This letter sent to the notaries clarifies that the “mere fact that these children were born through gestational surrogacy cannot at the outset lead the notary to exclude them as heirs of their parents’ estate, provided that the parentage with the latter can be proven by their foreign birth certificate even if the transcription of those acts was not registered in French civil registrars. “ Even though this ECHR judgment has inevitable weight to influence the debate, let us recall that the senior judges of the Court of Cassation are granted full freedom: they are under no obligation to give up their jurisprudence in favor of the ECHR’s assessment, if they are contradictory. The June 19th plenary session, proved that the Court of Cassation could modify its position.  Attorney General, Jean-Claude Marin, the highest court magistrate has indeed concluded that he advised to “partially” register these children in the civil register, pending DNA paternity testing. However he refuses to recognize an “intended parent” by the principle of the inalienability of the human body and because “validating the automatic transcription of the foreign birth certificate on the French civil register would be equivalent to an automatic recognition of Gestational Surrogacy.” Furthermore, Advocate Spinosi, representing Rights Defender Mr. Jacques Toubon (who spontaneously intervened in the case,) has requested that parentage should be registered on children’s civil registrars. The judgment is due on July 3, 2015.  If it concludes that birth certificates cas be transcribed onto the French registrars, it will be equivalent to supporting GS practices, which will put France in a serious legal contradiction. It could deeply upset our legal system by agreeing de facto that individuals (women and children) could be considered as an object of a contract. Not once during the session, was the situation of the women raised, except by the lawyer of human rights defender who went as far as denying them, stating that there was no maternal bond between the child and the woman who carried it. As a reminder: gestational surrogacy is illegal in France and it is “incurably void as contrary to public policy”. This means that GS is without effect in the eyes of the law. (French civil code article 16-7.) The French penal code, however, only sanctions it indirectly, by condemning the use of intermediaries (French penal code, article 227-12) or maternity simulation (French penal code, article 227-13) [su_note note_color="#ffffff" radius="0"]Gestational Surrogacy: chronology of main decisions by the French Court of Cassation 1991: Even before any legislative appeal, in a historic decision at the Plenary Assembly on May 31st the French Court of Cassation condemned the practice of surrogacy, as contrary to the inalienable principles regarding human body and the conditions of human beings. (Cass. ASS. plén., 31 mai 1991, no 90-20.105) As it would be useless to condemn the practice while still validating its consequences, the same decision refused the adoption of the child by the spouse of the father, since this would be misusing the institution of adoption. 1994: The Bioethics Laws result in the creation of the Article 16-7 of the French Civil Code, which provides that “any agreement for reproductive or gestational surrogacy would be null and void.” 2011: The French Court of Cassation confirms its’ rejection of transcribing these acts on French civil registers and its’ rejection to establishing a status of parentage possession. (Cass. 1re civ., 6 avr. 2011, n° 09-66.486, 10-19.053 ; and 09-17.130.) As “it is contrary to the principle of the inalienability of the person, a cardinal principle of French law, to produce effects to any agreement related to gestational surrogacy on account of another party, as null and void and contrary to public policy under articles 16-7 and 16-9 of the Civil Code.” This would result in French legislation designating a woman who would not have given birth to the child as a ‘Mother’. Yet, the only way to attribute the parentage of a child to a woman who did not carry him is by adoption ordered by a court and, precisely such an adoption is not realistically feasible as it would be considered as a misappropriation of the institution. 2013: Subsequently the French Court of Cassation takes position opposing the establishment of parentage of these children in regard to the biological father due to fraud committed pertaining to the applicable law committed by the latter. (Cass 1re Civ., 13 sept 2013, pourvoi n° 12-18.315, Bull.2013, I, n° 176 et n° 12-30.138, Bull.2013, I, n° 176.) 2014: In spite of the “Taubira Circulaire” of January 25 2013, The French Court of Cassation once again rejects the transcription on French civil registrars of the birth certificates from two children born to surrogate mothers in India. [/su_note]]]>

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