MAP-Surrogacy abroad, incoherencies in senatorial report

On February 17, 2016, members of the Senate Legal Commission, Yves Détraigne and Catherine Tasca presented an informational report on the consequences of having recourse to Medically Assisted Procreation (MAP) and to surrogacy abroad, practices which circumvent French law and lead to serious infringements on filiation rules and children’s rights.

This incoherent situation is created by « some couples to bring a child to life, by having recourse, abroad, to means which are unlawful in France (MAP with a donor for single women or for female ‘couples’, surrogacy for infertile male/female couples, or male ‘couples’), then requesting in France the recognition of filiations established abroad”.

The president of the Senate’s Legal Commission, Philippe Bas, launched this informational study in autumn, 2014, in view of decisions delivered at that time by the Court of Cassation on MAP and by the European Court for Human Rights on surrogacy, decisions which called into question the basic principles of filiation in French law. The solutions recommended by both rapporteurs are their own and not the ones of the Parliament nor of the Government, but nevertheless they aim at taking note of these reversals of jurisprudence, and are presented as a “fait accompli”. What was clearly unlawful could be provided an official and legal solution, no matter the fraud to the French law.

A summary of this report is provided below in the annex.

According to Alliance VITA event if the report deserves credit for trying to reinforce prohibition on surrogacy, it doesn’t end the serious legal incoherencies of these practices and perpetuates serious injustices for the children concerned:

  • For MAP, by allowing the adoption by female ‘couples’, the biological link will not be taken into account regarding child’s paternal origins; however for surrogacy, the biological link would remain the determining criterion, since the filiation would be impossible for the intended mother. Why should this biological link be essential in one case in not in the other?
  • The rapporteurs consider that, in the situations examined, MAP raises fewer ethical problems than surrogacy. Yet, the child undergoes a mistreatment regarding his origins which is equivalent in both cases, since the objective remains to intentionally delete one of the two filiations of origin: paternal filiation for MAP and maternal filiation for surrogacy. Furthermore, when practiced by people of the same sex, these techniques deprive the child of the beneficial contributions of sexual alterity. It’s much more necessary to take into account these two fundamental injustices, which go against the genuine interest of the child.
  • The report is making an illusive attempt to find a new legal coherence, which is obviously impossible since the vote in 2013 for the law on marriage and adoption for same-sex couples. This evolution of the legal framework leads to a dead end: on the one hand, it distorts the principles of the adoption and it makes official the “right to have a child”; on the other hand, it may well introduce new forms of discrimination between adult men and women, because it would de facto create the right for filiations for two women while refusing it for two men.


Main proposals of the informational report

Firstly, the report explains how national laws are being circumvented by people who resort to MAP or surrogacy practices abroad. The report then suggests adjustments to French legislation, trying to reconcile the need for pragmatic answers and the defense of ethical principles.

* On MAP

The report recalls the current existing legal framework in French law: medically-assisted procreation is only authorized for couples consisting of a man and a woman, of an age to procreate and who have been medically diagnosed with infertility.

The May 17, 2013 law, authorizing marriage and adoption for same-sex couples, now makes it possible for a woman to adopt the child of her female partner. Operating a reversal of jurisprudence, the Court of Cassation then delivered two statements on September 22, 2014: having recourse to MAP abroad “is not an obstacle to pronouncing adoption by the female partner of the child’s mother […], as long as the legal requirements for adoption are respected and as the adoption is in the child’s interest”.

The report considers that this position of the Court of Cassation’s gives “a satisfactory balance”. It mentions the following two consequences:

  • One should no longer oppose this type of adoption, on the one hand because in France the filiations are established “without controlling the conditions of the child’s conception”, and on the other hand, because MAP “does not raise the same ethical questions as surrogacy
  • However MAP should not be open to same-sex couples, because if a medical diagnosis of infertility and sexual alterity are no longer required, it would completely upset the French conception of MAP by paving the way to a “right to having a child” and to a “reproduction for personal convenience”.

* On Surrogacy

The report emphasizes the absolute unlawfulness of this practice on French territory, the connected criminal punishment, thus making it impossible in France to establish the ensuing filiations. But following the decision of the European Court of Human Rights (ECHR) on June 26, 2014, condemning France for refusing to recognize the biological and paternal filiations, the Court of Cassation reversed its jurisprudence with two decisions on July 3, 2015. The State Council also validated the January 25, 2013 circular from the Justice Ministry facilitating the granting of certificates of nationality.

The report considers that certain clarifications are necessary and specifies that in the current debates, two false ideas have circulated: on the one hand, the children born from surrogacy are not “phantoms of the Republic” since they can live in France without any difficulty thanks to the foreign civil act; and on the other hand, the establishment of a purported “ethical surrogacy” would not diminish the numbers of those having recourse to the foreign “business” of surrogacy, as shown by the example in Great Britain. Indeed, the majority of those seeking commercial surrogacy abroad are British, even though the country has legalized “non-commercial” surrogacy for the past 30 years.

The report recommends :

  • strengthening prohibition on surrogacy by reinforcing the criminal punishment for those having recourse to this practice, and by initiating international negotiations so that foreign countries authorizing this practice forbid French people to have access to it on their territory.
  • strictly adhering to the ECHR requirements by “explicitly authorizing the child, and only the child (even if this action is exercised by his parents on his behalf), to establish filiations in a strict respect of the French legal requirements”, that is to say only the child’s paternal biological filiation.
  • to refuse, however, establishing filial relationships with the intended relative (that is the intended mother) so as not to contradict French civil law whereby the mother is the child-bearer.
  • to forbid any actions of later adoption of the partner’s child, in order to establish intended filiation.
  • to facilitate family life “by allowing the intended parent to receive a delegation of life-long parental authority.

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