19 Jul 2017 French Court Creates Parentage Path in Foreign Surrogacy
A July 5 ruling by the French supreme court, or Cour de cassation, has brought some clarity but not necessarily made things any easier for French intended parents seeking French recognition of their parental authority for children born via surrogacy. Surrogacy has been illegal in France since 1991, sending a tide of intended parents to seek out surrogates in other countries, only to encounter legal difficulties back home in establishing their babies’ nationality and their parental rights.
In the wake of the recent French court decision, parents of children born via foreign surrogacy, whether gay or straight, must undergo a series of three steps, including second-parent adoption, in order to be recorded as parent on their child’s French birth certificate.
The convoluted process the French court ruling has imposed upon intended parents, although it clarifies French parentage law, is a setback in the wake of several European Court of Human Rights rulings that have tended to treat recognition of parental authority and citizenship for children born abroad via surrogacy as basic human rights. As we reported, the ECHR ruled in two cases in June 2014 that France must recognize the parental relationship of parents who have genetically related children via surrogacy in other countries. French children born abroad via surrogacy would receive passports and French identity cards and would be able to request certificates of French nationality. The decision was applicable to all 47 Council of Europe member nations. As we wrote at the time:
The ECHR, which acts under authority of the European Convention on Human Rights enacted by the Council of Europe in 1950, ruled that while France has the right to ban surrogate parenthood within its boundaries, it does not have the right to deny legal status to the parent-child relationships of children and their parents just because a surrogate carried and delivered the children.
So what happened? The French court took the position that, while it agrees with the ECHR’s directive to recognize the nationality of the child, refusing to transcribe the intended mother as parent is not a violation of human rights. French law defines “mother” as the person who gives birth to the child; the intended mother who has a child via surrogacy does not fit that definition. The court further ruled that refusal to inscribe the intended mother does not have an excessive impact on the child’s right to privacy and family life, because the intended mother can adopt the child, a recognized procedure to establish parental rights in France. The cumbersome process and added expenses to intended parents is consistent with France’s policy of discouraging surrogacy.
The ruling establishes the following three-step process for intended parents with children born via surrogacy abroad:
- Obtain initial birth certificate with bio dad ONLY: French colleagues advise that the initial birth certificate to be submitted to French authorities be completed with only the biological father listed (not the intended mother or second intended father, and not the surrogate). If both biological father and intended parent are listed on the initial birth certificate, the French government will only partially register, or “transcribe,” the birth certificate, listing only the biological father and completely omitting the name of the second parent.
But what about those cases in which the “biological father” is an anonymous sperm donor, for example, if an intended father were infertile or in the case of lesbian intended parents? The short answer is, we don’t know. Because the French court ruling leaves many questions remaining, it’s likely this and similar issues will be hammered out on a case-by-case basis.
- Second-parent adoption: Intended mothers, even if they are biologically related to the child, or second intended fathers in same-sex couples, must adopt their child. If the surrogate birth takes place in the United States, colleagues recommend the adoption take place in a U.S. court if possible (and this is possible in a few states). IPs who adopt in France must undergo a one-year waiting period, followed by another six months to a year to complete the adoption procedure; a U.S. adoption will generally be speedier. Therefore, French intended parents should consult an attorney knowledgeable about adoption procedures in the country where the surrogacy takes place, and in France, before deciding where to do the adoption.
If an intended parent has already obtained an initial birth certificate with both the biological dad and the intended mom or second father listed, he or she will most likely have no choice but to complete the adoption in France.
Only married people may adopt under French law; luckily for same-sex intended parents, France legalized same-sex marriage in 2013. It is highly recommended that the bio dad and his spouse be married at the time when the U.S. adoption judgment is delivered.
- Obtain a new birth certificate listing both intended parents. Once the adoption is completed in the U.S. or France, and the adoption order (not a parentage order) is accepted by the French attorney general in Nantes (who serves as registrar for French people born abroad), French authorities will issue a new birth certificate listing both parents.
Although the French high court’s July 5 ruling complies with the ECHR’s directive by offering intended parents a legal route to establishing parental authority of their children born abroad via surrogacy, it sure doesn’t make it easy for them to do so, nor does it treat intended parents via surrogacy in the same way as it does other parents whose children were born abroad. In reporting on a 2013 ECHR decision, we pointed out the social conservativism of much of French society and ongoing public opposition to assisted reproductive technology.
While the French government is moving in the right direction to provide legal security for children of same-sex couples and families created via ART, French public support continues to lag behind. When the French assembly passed the gay marriage bill recently, research indicated the majority of French people still had strong opposition to “assisted births.” In fact, French legislators assured constituents that the gay marriage bill would not do anything to weaken France’s ban on surrogacy, in effect since 1991.
When we wrote that piece in 2013, the pendulum of justice seemed to be swinging toward increased reproductive freedom in France and a lessening of societal disapproval of ART. Now the pendulum swings the other way, a pattern common in societies undergoing change. Just as increased visibility and openness have fostered acceptance of LGBT rights, putting a human face to intended parents seeking citizenship and parental authority for their children born via surrogacy may be the most effective way of changing hearts and minds.