A New Pro Surrogacy Offensive

On 23 May 2018, the European Court of Human Rights (ECHR) communicated to the French government the application Martine Maillard and others v. France (no 17348/18) lodged on 10 April 2018. With the applications Pierre Anne Braun v. France (no 1462/18) and D v. France (no 11288/18) respectively lodged on 4 January 2018 and 2 March 2018 and communicated on 29 March 2018, it constitutes a new pro-surrogacy offensive at the European level. These three cases deal with the refusal to fully transcribe in the French civil registries the birth certificates issued abroad pursuant to a contract of surrogacy. Such a demand aims at the recognition of a filiation link between the child and each member of the couple who resorted to surrogacy.

First, one must remember that article 16-7 of the French Civil Code provides that “Any agreement on procreation or gestation for another person is null”: the ban on surrogacy is of public order (Civil Code, art. 16-9). Concerning the transcription of a birth certificate issued abroad, article 47 of the Civil Code provides that “Any act of civil status for French and foreigners issued abroad and drawn up according to the forms used in this country makes proof, unless other acts or documents, external data or elements emanating from the act itself establish, if appropriate after all useful verification, that this act is illegal, falsified or that facts declared do not reflect reality”. According to this text, a birth certificate issued pursuant to surrogacy and indicating the female buyer and not the surrogate as being the mother cannot make proof, since the facts declared do not reflect reality. However, it is the transcription of such an act that the applicants are demanding in those three cases submitted to the ECHR.

In the Braun case, Mrs Pierre-Anne and Mr Robert Braun (born in 1965 and 1963) are French nationals who married in 2004 and live in Thailand. In 2014, they asked for the birth certificate of Eliott, born in 2010 in the United States, to be transcribed in the French civil registry: the document mentions Mr and Mrs Braun as being his father and mother. The public prosecutor of Nantes refused to transcribe the birth certificate due to evidence suggesting surrogacy: lack of ties with the United States, no mention of a child in the family record book, Mrs Braun’s advanced age at the time of childbirth (45 years), refusal to provide the certificate of birth and the hospital bracelet. On 30 August 2016, the Tribunal de Grande Instance of Nantes ordered this transcription by affirming that the public prosecutor did not prove that the act did not reflect reality (cf. Civil Code, art. 47). On 11 September 2017, the Court of Appeal of Rennes confirmed this judgment but only as to the transcription of the paternal filiation. Regarding the maternal filiation, the Court ruled that “Concerning the identification of the mother in the birth certificate, reality in the sense of [article 47 of the Civil Code] is the reality of childbirth”, that evidence actually suggested that Mrs Braun had not given birth, that the birth certificate does not reflect reality and cannot thus be transcribed.

In the D. v. France case, Mr & Mrs D. (born in 1972 and 1957) are French nationals who married in 2008 and live in France. They resorted to surrogacy in Ukraine to obtain B. in 2012. In 2014, they asked for the girl’s birth certificate to be transcribed. The document mentioned them as her father and mother. This was refused by the public prosecutor of Nantes, once the indication of Mrs D. as being the mother did not reflect reality because she did not give birth. On 12 January 2017, the Tribunal de Grande Instance of Nantes ordered the transcription, arguing that resorting to surrogacy, which is prohibited by art. 16-7 of the Civil Code, is not an obstacle to recognise in France the resulting filiation link, according to the interest of the child whose birth conditions cannot be invoked against him. On 18 December 2017, the Court of Appeal of Rennes confirmed this judgement but only as to the transcription of the paternal filiation. With arguments similar to those in the Braun case, the Court ruled that the birth certificate cannot be transcribed as to the maternal filiation, once the use of surrogacy is not disputed, so that the indication of Mrs D. as being the mother does not reflect reality which is the reality of childbirth according to article 47 of the Civil Code.

In the Maillard case, Mrs Martine and Mr Christian Maillard (born in 1962 and 1969) are French nationals who married in 2001. They resorted to surrogacy in Ghana where Brice, Camille and Lucile were born in 2014. In the same year, they asked for the birth certificates mentioning them as being their father and mother to be transcribed in the French civil registry. The public prosecutor of Nantes having deferred the transcription, the couple brought the case to the Tribunal de Grande Instance of Nantes which ruled in their favour on 17 September 2015, as well as the Court of Appeal of Rennes on 6 March 2017 on the basis of the child’s best interests. On 14 March 2018, the Court of Cassation quashed this decision and ordered the birth certificates to be transcribed but only as to the paternal filiations, thus making the reality of childbirth prevail.

With the children, the three couples brought their cases to the ECHR, requesting it to find that the fact that French jurisdictions refused to fully transcribe in the French civil registry the birth certificates issued abroad pursuant to a contract of surrogacy violates the European Convention on Human Rights, particularly the child’s right to respect for private life (Article 8), and constitutes a discriminatory infringement of this right on the ground of birth (Article 14 in conjunction with Article 8).

In the spiral of liberalisation of surrogacy

The ECHR already had the occasion to deal with the transcription in the French civil registry of birth certificates issued abroad pursuant to a contract of surrogacy in the cases Mennesson v. France (no 65192/11) and Labassee v. France (no 65941/11) (see also Foulon and Bouvet v. France, no 9063/14 and 10410/14, 21 July 2016): on 26 June 2014, the Court ruled that, although children were identified abroad as being Mennesson’s or Labassee’s, they were denied this quality in French law, which undermined their identity in the French society. It noted that case law prevented the recognition (by transcription of a foreign birth certificate) as well as the establishment (by acknowledgment of paternity, adoption or sui juris) of the filiation link between the biological father and his children born abroad through authorised surrogacy, which went beyond what is permitted by the wide margin of appreciation the Court recognises to States in their decisions concerning surrogacy. Even if the Court concluded to a violation of the children’s right to respect for private life (Article 8 of the Convention), it gave precedence to the biological truth and to the principle of reality, once the man mentioned as being the father in the child’s birth certificate is really the biological father.

Following these condemnations, the French jurisprudence changed: on 3 July 2015, the Plenary Assembly of the Court of Cassation admitted the establishment of a paternal filiation link by transcription of the birth certificate issued abroad after surrogacy and mentioning the male buyer as being the father and the surrogate as being the mother, thus giving precedence to the principle of reality. On 5 July 2017, the Court of Cassation also admitted that a filiation link can be established between the child born abroad by surrogacy and the biological father’s spouse (a man in this case) via simple adoption. On 14 March 2018, in the Maillard case, the Court of Cassation recalled the impossibility to transcribe a foreign birth certificate mentioning a woman who did not give birth as being the mother.

At this time, French law thus admits that the paternal filiation can be recognised towards the biological father via partial transcription of the birth certificate and that the maternal filiation can be established towards the female buyer via simple adoption. The Court of Cassation recalled that partial transcription does not disproportionately affect the children’s right to respect for private and family life, once the French authorities do not prevent them from living “in family”, a certificate of French nationality can be issued and adoption is possible by the father’s spouse.

Cases with a lot at stake

In the Mennesson v. France and Labassee v. France cases, the ECHR thus dealt with paternal filiation and demanded its establishment towards the biological father of the child born by surrogacy, according to biological truth. It is now requested to rule on the establishment of maternal filiation in the context of the transcription of birth certificates indicating the female buyer, and not the surrogate who gave birth to the child, as being the mother. It is thus asked to define the status of the “intended parent”.

However, it should be noted that the origin of the oocytes used to conceive the children cannot be deduced from the facts in the Braun, Maillard, and D. cases. Yet the Court could rule differently, according to the meaning it will give to the biological truth, depending on whether the oocytes came from the female buyers or from the surrogates or donors.

While these three new cases are an opportunity for the ECHR to condemn the practice of surrogacy or at least limit its effects, a condemnation of France would have serious consequences. It would amount to obliging States to automatically recognise the whole filiation appearing on the foreign birth certificate with misleading content, namely to automatically give effect to any surrogacy practiced abroad in a country where it is possible. Tending to greatly reduce under the pressure of the ECHR decisions, the freedom of the States not to recognise any effect to surrogacy practiced abroad, while this practice is banned on their soil, would be nullified. So, there is a lot at stake with those three cases: the Court is requested to activate the spiral of liberalisation of surrogacy a little bit more, by accepting the principle of this practice and validating it a posteriori, when it produces its effects.

Besides, the identification of the genuine best interests of the child is a stake. For the applicants, it lies in establishing a misleading maternal filiation towards a woman who is not the mother of the child, for maternity stems from childbirth. Though, a filiation consistent with reality could be established between them via simple adoption. Once again, applicants thus request the Court to oblige the States to establish a misleading filiation, which it systematically refused until now. This issue is all the more important since the ECHR tends to recognise the child’s right to know his or her origins (see for example Mikulic v. Croatia, no 53176/99, 4 September 2002). It thus ruled that “Birth, and in particular the circumstances in which a child is born, forms part of a child’s, and subsequently the adult’s, private life guaranteed by Article 8 of the Convention” (Odièvre v. France [GC], no 42326/98, 13 February 2003, §29) and that “an individual’s interest in discovering his parentage does not disappear with age, quite the reverse” (Jäggi v. Switzerland, no 58757/00, 13 July 2006, §37 and §40). Yet this right to know one’s origins would be violated if the Court rules in favour of the applicants.

In this context, the recent “Proposition of resolution calling for a universal ban on surrogacy”, submitted to the French National Assembly on 22 May 2018 at the initiative of Xavier Breton resonates particularly. Forty Members of Parliament worry about the fact that the French ban on surrogacy is step by step eroding because “blows from the French jurisdictions regularly weaken [it]”, under the pressure of the Strasbourg Court. They ask: “What is left of Article 16-7 of the Civil Code? While any contract of surrogacy is null and void according to French law, one can see in all these court decisions a worrying reduction of the scope of this article.” They also recall that when Emmanuel Macron was a candidate in the presidential election, he “also [committed himself] to making France take part in ‘an international initiative to fight against the trafficking of women and their commodification which are linked with surrogacy developing worldwide.’” Yet, as lucidly underlined by Members of Parliament, how can such an initiative be implemented if “it is sufficient to go abroad to obtain the prohibited result”? This current paradox may increase if the ECHR sides with the applicants in those three cases. They also put into question the civil registry’s role and liability: is it used to satisfy individual desires, or does it serve the public interest? On this point, Members of Parliament highlight the “filiation of pure convenience that surrogacy practiced outside of France is aimed at producing.”

At all events, the question of the exhaustion of domestic pleas, which is a condition to the admissibility of a case by the Court, arises since the sole Maillard case has been brought to the French Court of Cassation prior to the ECHR. It is thus an open question whether the Court will declare these cases admissible in order to rule on their merits or whether it will rigorously apply the principles related to the exhaustion of domestic pleas, as it did in the case of Charron and Merle-Montet v. France (no 22612/15): on 8 February 2018, the ECHR declared inadmissible for non-exhaustion of domestic remedies the application of a two women partners claiming a “right to a child without father”. They were represented by the same lawyer as the applicants in these three cases.