Surrogacy : Judge requests recognition of birth certificates for two children born to a surrogate mother in California

According to the article published by Europe 1 on December 11, 2015, the president of the District Court in Nantes asked the State to transcribe birth certificates for two children born to a surrogate mother in California, on the birth registers of the Foreign Affair Ministry.

The judge relied on the “decision in Mennesson and Labassee” from the European Human Rights Court (EHRC) on June 26, 2014. This decision sanctioned France for having “violated the right for respect of private life” by refusing to transcribe the filial relationship with the biological father on the French civil register for children born abroad from a surrogate mother. Although having the opportunity to appeal, France did not contest this decision, even though this practice is prohibited within its’ territory. However, the EHRC did not pronounce a ruling on the French authorities’ choice to prohibit surrogacy.

The California birth certificates mention the intended mother as the mother having given birth, which does not reflect the truth, since the children were born to a different woman, the surrogate mother. In the decree rendered last October 3, the president of the court, considered nonetheless that “the facts that are affirmed conform to a court ruling legally dispensed in California, and ensures enforceability of the surrogate mother’s contract which attributes legal paternity to the sponsoring father and legal maternity to his spouse.”

Furthermore, the president of the court ordered the State to reimburse the couple 3500 Euros for court fees, even though they had broken the law.

Transcribing birth certificates is a serious degradation of our Rights. Before the reversal in jurisprudence by the Cassation Court’s decisions last July 3rd all the tribunal courts condemned the practice of surrogacy, as it opposes the principle of inalienability of the human body and a person’s integrity. The courts refused to transcribe these births on the French civil register, thereby denying official filial recognition. Indeed, it is in opposition to the inalienability of the integrity of people, an essential principle in French law, to have an effect on an agreement concerning procreation for another person, making public order null and void in terms of Civil code articles 16-7 and 26-9.

Transcribing the name of the sponsoring mother on civil registries has the consequence of designating that woman as the mother by French law, although she did not give birth to the child. Yet, the only means to attribute the maternity to a woman who did not carry the child, is by a legally authorized adoption, and such an adoption is explicitly inconceivable in the case of surrogacy because it would constitute a misappropriation of adoption agencies.

Gestational surrogacy involves legal, anthropological and medical implications which call basic legal principles into question. This practice establishes a program whereby a child is separated – by contract – from the woman who carried him and gave him birth, which does not respect the child’s rights. A fragmented maternity between two, even three women (progenitor, gestational carrier, and educator), constitutes a serious injustice for the child. It is also an injustice for the surrogate mothers whose role amounts to a form of slavery, incompatible with their human dignity. Those who have recourse to this technique abroad have a serious responsibility: without denying the legitimacy of the children concerned to have a civil registry and filiation, erasing their complicated background is not the means to respect their profound identity. To base their identity on adults’ lies does not comply with the real interest of the child, and will lead to inevitable future contestations if the State upholds this fiction.

Recall as mentioned in a Senate report, that “prohibiting the establishment of filiation for a child born in violation of French law doubtlessly remains the most dissuasive sanction with respect for those whose irrepressible desire for a child sometimes results in blindness” .[i]

The prosecution has appealed against this decision.

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