French legislation on surrogacy
Surrogacy (GPA) is the act of a woman ("surrogate mother") carrying a child on behalf of a "pair of prospective parents" to whom the child will be delivered after birth. It is a form of medical reproduction that involves implanting an embryo obtained through in vitro fertilisation (IVF) or insemination into the surrogate's uterus. Depending on the methods used, either members of the couple are the genetic parents of the child, the intended parents have only a partial genetic link to the child, or no genetic link to the child.
No binding text on surrogacy has been adopted at the international level. Most European countries, including France, prohibit surrogacy. The civil prohibition originates from the first judgements of the Court of Cassation in 1989 and 1991. The effect of this case law is that a contract "by which a woman agrees, even for free, to become pregnant, bear and then give up a child is contrary to the principles of the inaccessibility of the human body and the inaccessibility of the state of personhood".
The first important judgement on surrogacy in France was issued by the "Cour de Cassation" on 13/12/1989 (No. 88-15-655). In this judgement, the Court decided to completely ban surrogate mothers in France and declared all relevant contracts null and void.
As a legal basis, this judgement referred to Article 1128 of the French Civil Code, which provides that only commercial things can be the subject of a contract. The human body, not being regarded as commercial property, is thus excluded.
On 31.05.1991 (No. 90-20105), the Court of Cassation of the highest instance ruled that the human body is not a commercial object.
In 1994, the French Parliament adopted the Bioethics Act (Act No. 94-653). This law added article 16-7 to the Civil Code, which prohibits the contract of surrogacy. It regards this prohibition as a public policy provision that provides that it is impossible to go beyond the contract.
According to the criminal law point of view, if someone participates in the surrogacy process in France, he or she faces being charged with several offences:
- the offence of artificial insemination (the fact of carrying out insemination outside a regulated legal medical procedure), prohibited by article 511-12 of the French Criminal Code;
- the offence of encouraging the abandonment of a child, prohibited by article 227-12 of the French Criminal Code;
- the offence of child substitution (when a woman notes on her birth certificate that she is the mother of a child, the mother of a child from which she was not pregnant) will be punishable under article 227-13 of the French Penal Code.
In France, criminal law can only be applied to acts committed on French territory. Consequently, an offence against French criminal law committed in another country that does not prohibit surrogacy cannot be convicted in France.
However, there is a problem with the recognition of foreign birth certificates in France. To summarise the situation, a child born through surrogacy abroad has a birth certificate where the intended parents (mother and father, two dads, two mothers) can be listed. In the case of suspected GPA, France has long rejected these transcriptions. The Court of Cassation forced France to do so for a period of time. But as a result, the government, in its reform of the bioethics law, imposed to go through the adoption procedure or the exequatur of the adoption decision to establish the origin of the child.
Thus, in 2008 and again in 2011, the Court opposed the recording in French civil registries of birth certificates and refused to recognise in French law the parentage established between children born to a surrogate mother in California and their intended parents, considering that this non-transcription "does not deprive the children of the maternal and paternal parentage that the law of California recognises, nor prevents them from living with their parents in France, nor violates the right to respect for the private and family life of these children within the meaning of Art.
On the other hand, on 04/05/2011 (n°348 On 4/05/2011 (n°348778), the Council of State took the opposite position and considered that the fact that the children were conceived through a surrogacy contract, which is invalid as a matter of public policy in France, "does not affect the obligations imposed on the administration", in accordance with the provisions of article 3-1 of the Convention on the Rights of the Child. According to this Convention, "in all decisions concerning children, whether taken by public or private social welfare institutions, courts, administrative or legislative bodies, the best interests of the child shall be a primary consideration". The Council of State has ruled that consulates must issue a "pass" to a child born abroad to a surrogate mother to allow the child to reside in France with the intended parents.
Parents of children born to a surrogate mother then found themselves in a difficult situation, placing their children in an uncertain legal situation and depriving them of certain prerogatives, especially during certain events such as the parents' divorce or the death of their child. The circular of 25 January 2013 recommended that the chief clerks of district courts, public prosecutors and public prosecutors should facilitate the issuance of certificates of French nationality to children born abroad in application of article 47 of the Civil Code, according to which "any civil status certificate of French and foreigners drawn up in a foreign country and drawn up in the forms used in that country is authentic".
On 17.05.2013, France allowed same-sex couples to marry, allowing them access to adoption proceedings. This has had several implications for the legal perception of surrogacy in France, combined with supranational decisions.
In a decision of 13 September 2013 (No. 1092), the Court of Cassation further strengthened its position by favouring public policy over the interests of the child: 'the refusal to enumerate a birth certificate is justified, made in a foreign country and drawn up in the forms used in that country, when the birth is the result, in violation of French law, of a common process, including an agreement to become pregnant on behalf of others, an agreement which, even if lawful abroad, is invalid as invalid public In the same judgement, the Court of Cassation endorsed the decision of the Court of Appeal for having concluded that the law on the invalidity of the recognition of a child by the father-to-be was falsified.
26.06.2014 The European Court of Human Rights has issued two judgements on the issue of surrogate mothers in France. These are Menesson v. France and Labassé v. France. Both judgements found that France had breached Article 8 of the European Convention on Human Rights (ECHR), which recognises the right to privacy of children. Based on the best interests of the child and the right to privacy, the Court held that the refusal to transcribe a foreign birth certificate issued abroad, based on the fact that the alleged father was not the real father, constituted an obstacle to the recognition of the child's paternity and therefore a violation of Article 8 of the ECHR.
However, the Court did not condemn France for banning surrogacy, considering that it was a matter of state sovereignty (margin of appreciation doctrine).
On 12.12.2014, the Council of State again decided to protect the interests of the child. Indeed, a circular published by the French government asked consulates to issue certificates of French nationality to children born abroad to parents with French nationality. As defined in the French Civil Code (Article 18), any person with at least one French parent is French.
The Association Against Surrogacy appealed the circular to the State Council. Again, the court ruled on the basis of the best interests of the child. And in particular the right to private life (Article 8 of the ECHR). We can see the connection of this judgement with the 2014 decisions of the European Court of Human Rights.
A few months later, the Court of Cassation ruled on 03.07.2015 (judgement no. 14-21223) that surrogacy abroad is not a fraud against the law, requiring the transcription of the act of birth abroad if it complies with the provisions of the French Civil Code (Article 47). However, all these changes, which are in favour of the child's interests, have not been fully taken into account by some French courts. Because the reference to the presumed father instead of the biological mother is considered (and remains) an obstacle to full transcription.
21.07.2016 The European Court of Human Rights again condemned France in the case of Fulone Bouvet v France. Again the judgement was based on the child's right to privacy. The Court ruled that France had not sufficiently addressed the obligation to transcribe the birth certificate. In 2015, for example, the Rennes Court of Appeal did not agree to rewrite the birth certificate if it listed the alleged father. The European Court of Human Rights condemned France again on 19.01.2017 on the same basis in the judgement in the case of Labory v. France.
On 18.11.2016, the French legislator introduced articles 452-1 to 452-6 to the Code of Judicial Administration. These articles allow to ask the consulate to rewrite, among other things, the birth certificate, which was the subject of a refusal by France before the European Court of Human Rights.
On 05.07.2017, the Cour de cassation (No. 16-16455) ruled in favour of simple adoption (as opposed to full adoption) of children born by surrogacy, if the surrogate mother and father consent. In addition, the court ruled on a partial copy of the birth certificate (Decision No. 16-16901). The court allowed only the recognition of the biological father.
10.04.2019 The European Court of Human Rights issued an advisory opinion on the state of surrogacy in Europe. The Court recognises the lack of consensus. But it believes that on the basis of respect for privacy, states should allow recognition of descent from the intended mother. The Court recognises that France has the right not to recognise the birth certificate of a child born from surrogacy abroad, asking it to recognise the filial relationship by a third-party method.
31.07.2019 The Council of State (Decision No. 411984) has sent a reminder to the Minister of Interior. Stressing that a foreign birth certificate of a child, even if it is not recognised, indicates the relationship with the said parents. But the Court of Cassation on 10.04.2019 recognised the full transcript of such certificate.
In a judgment of 7 April 2022, the ECtHR held that the refusal of the French domestic courts to lawfully establish the applicant's paternity in respect of his biological son born by surrogacy in France, after the surrogate mother had entrusted the child to the couple. compatible with the applicant's right to respect for his private life. compatible with the applicant's right to respect for his private life. The Court held that "establishing the applicant's biological paternity would have respected the best interests of the child", but the domestic courts had failed to fulfil their duty of exceptional diligence as regards the length of the procedure. At the end of the procedure On 2 August 2021, the French Parliament finally adopted the Bioethics Law, with its main provision on the right to in vitro fertilisation (IVF) for all women, including single women.
On 2 August 2021, the French Parliament finally adopted the Bioethics Act, with its main provision on the right to in vitro fertilisation (IVF) for all women, including single women and women in same-sex marriages. Previously, only heterosexual couples had this right in case of medical problems related to infertility. Under the new law, all women up to the age of 43 are eligible for IVF. The procedure will also be covered by the compulsory health insurance system (Sécurité sociale).
This law also regulates complex issues related to stem cell research, organ donation, gamete preservation, and cancels the previous anonymity of sperm and gametes. Now newborns will be able to find out who their biological parents are.
The law touched upon the rules for establishing the parentage of children for civil registration and the adoption of children born outside the country through surrogacy on behalf of French citizens. Couples will have to adopt children within three years of birth. Recognition of paternity abroad is assessed according to French law. The transcription of a foreign civil status document for a child born via surrogacy is thus limited to the biological father only (the presumed father must undergo an adoption procedure). The law is therefore more restrictive than the practice of the Court of Cassation.
However, surrogacy is still prohibited in France. Moreover, Thibaut Bazin, a member of the National Assembly, has introduced a bill to enshrine the prohibition of surrogate mothers in the French Constitution. The text includes a single article concluding Section VIII of the Constitution: "No one may resort to surrogacy".
Thus, due to the lack of uniformity on surrogacy issues between the French judiciary, legislature and executive, France's negative position on the legalisation of surrogacy will not change in the short term.