In France, surrogacy is prohibited by law. As this procedure is legal in certain countries, such as Portugal, Great Britain, Belgium, as well as some U.S states, many couples travel abroad to become parents. However, when they return to France, they might end up in a legal void. They will then have to hire a filiation lawyer for the filiation to be legally recognized.
What is the legal status of parents of a child born out of surrogacy ?
The parents of a child born out of surrogacy are the biological parent and the second parent, known as the “intended parent”. Until now, the intended parents were not recognized by law and therefore had to undertake an adoption procedure to establish filiation with their child.
However, on October 4, 2019, the French Court of Cassation decided in favor of the transcription of birth certificates, justifying this position by “the best interests of the child”. This solution was rendered in light of the facts of the case, and therefore cannot be generalized. It will take the intervention of the legislator to clarify the situation and give a true legal status to the “intended parents”. Today, only the filiation of the child born out of surrogacy with its biological parent, i.e. the person who provided their own gametes, is recognized.
What is surrogacy?
In France, an estimated 2,000 children would be born out of surrogacy in a foreign country. But what is surrogacy exactly ?
Surrogacy is a method of assisted reproduction where intended parents work with a surrogate who will carry their baby. It can be used in a homoparental setting (male couple), or when a woman, in a heterosexual couple, cannot bear a child for medical reasons. The method consists of implanting an embryo resulting from in vitro fertilization (IVF) or insemination into the uterus of a surrogate mother who will give up all rights on the child after his birth. Only the biological parent can be considered as the legal parent : the other one has to adopt the child to establish filiation.
What does the law say today?
In France, surrogacy is prohibited by bioethics laws passed in 1994. These laws gave rise to Article 16-7 of the Civil Code, which states that “any agreement relating to procreation or gestation on behalf of another person is null and void”. Indeed, surrogacy raises many ethical questions, particularly with regard to the commodification of the human body. As of today, children born out of surrogacy in a foreign country are not recognized by French law.
However, case law is constantly evolving. In 2015, the Court of Cassation considered that the birth certificate of a child born out of surrogacy could be transcribed into the French civil status registers with the mention of their biological parent. In 2017, it ruled that a child born out of surrogacy could be adopted by their intended parent. Finally, on October 4, 2019, the Court of Cassation ruled that the parents of a child born out of surrogacy could request a transcription of the child civil status record.
In fact, the Court of Cassation ruled that the intended parent no longer has to start an adoption process to establish filiation with their child born of surrogacy, thus opening a way to recognize natural filiation between the child and their two parents. The law, however, remains unchanged.
Is the law enforced ?
The Court of Cassation, in a decision handed down on December 18, 2019, validated the transcription into French civil status of the birth records of children born out of surrogacy. This decision opens a possibility for the recognition of the parent-child relationship between the child and both parents, without the need for the parent to complete adoption proceedings. It remains to be seen whether this decision will set a precedent : in the meantime, each case will have to be examined by a judge, as the law remains unchanged.
Will this change?
We can logically think that French law, after legalizing assisted reproductive technology for all women, might one day address the issue of the legal recognition of children born out of surrogacy. If surrogacy itself might not be legalized soon, a recognition of the filiation between a child born out of surrogacy and their parents is probably on the agenda. Indeed, case law from the European Court of Human Rights and the Court of Cassation is heading in this direction.