05 Apr 2013 New Order Offers French Nationality to Children Born to Foreign Surrogates

Just a few weeks ago we posted a story about the French legislature’s initial moves to legalize gay marriage, a measure which could become law as soon as May or June. Another development in France was the issuance of an order from the French Justice Minister Christiane Taubira that could have enormous impact on French families created via assisted reproductive technology. The order relates requires the granting of certificates of French nationality to children born abroad to French parents through a surrogate.

One reason Minister Taubira’s order is so important is because surrogacy is illegal in France. As a consequence, many intended parents engage surrogates in other countries to help them create their families. Often the new parents encounter legal obstacles to bringing their children home to France.

The Wall Street Journal recently highlighted the story of Thomas Clochon and Nicolas Beslin, of Paris, France, who through an agency were matched with a surrogate in Madison, Wisconsin, USA. The gay couple, who have been together nine years, had tried for some time to adopt a child but found that the law in most countries would not allow adoptions by gay parents. Now parents of twin boys, they have returned to Paris, where their sons are designated American citizens living in France.

Fatherhood is better than either of them had imagined, the men said. "It's definitely what we expected, with more joy," Clochon said.

Recently, India passed a law prohibiting gay couples, unmarried heterosexual couples, and singles from entering into surrogate relationships with Indian women. Ostensibly the Indian government passed this law to protect the children. Unfortunately, there is a huge risk associated with this new law that many children will become stateless.

Some surrogate children, when born, will not be entitled to Indian citizenship, and may not be entitled to citizenship of the countries where the commissioning parents live. They may therefore be prevented from travelling abroad and find themselves stranded in India with a surrogate mother who may have no ability or resources (or even desire) to care for them.

If Minister Taubira’s order is successfully implemented, French parents whose children are born to surrogates abroad would not have to worry about the legal status of their children. The legal status of both parents, however, is a different story. For example, in the case of Clochon and Breslin and their twins, one of the men is the biological father of the two children, but, at least for now, France does not recognize the non-biologic father as a legal parent of the children.

Assuming the French Senate passes the gay marriage bill, legalizing gay marriage in France, the way would be clear for the non-biologic father to adopt the two children. And, assuming the Taubira order is implemented, then the new fathers should be able to obtain French citizenship for their children.

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.

Professor of law, Daniel Fasquelle, sees in the text “a form of legalization, sugarcoated, for surrogacy. Some couples are going to go abroad to find surrogacy contracts, and find safe harbor for arrangements that are illegal in France,” he explains. “We are opening the door to still other tricks. … These are not only children’s rights being violated, but also those of the human being. For surrogacy is a form of human trafficking.”

Obviously, despite the progressive bent of the current French government, social conservatives continue to have a strong voice in France, just as they still do in the United States. There, as here, the best strategy for opening minds and changing the negative perception of surrogacy is to continue to put human faces on families like Beslin and Clochon’s.