Will French Surrogacy Law Survive European Thrust?

Article published on Gènéthique on 11 January 2019

While the Comité consultatif national d’éthique [National Consultative Ethics Committee (hereinafter CCNE)] has reiterated its desire to maintain and strengthen the ban on surrogacy,[1] Priscille Kulczyk, family law lawyer and associate researcher at the European Centre for Law and Justice (ECLJ) goes back on the current pro-surrogacy offensive before the European Court of Human Rights (ECHR).

Gènéthique: What is the legal situation currently prevailing in France with regard to surrogacy?

Priscille Kulczyk: The practice of surrogacy is prohibited on the French territory, this prohibition being justified by reasons of public policy (Civil Code Arts 16-7 and 16-9). It is also criminally sanctioned as damaging the child’s civil status.[2] This is how people who want a child turn to countries where it is allowed or tolerated. On their return to France, these buying parents often wish to have the child’s foreign birth certificate transcribed onto the French civil registry. This formality makes it possible to obtain a French birth certificate, makes the parentage established abroad opposable and hides the use of surrogacy.

Having initially not allowed any transcription in the event of surrogacy,[3] France was condemned by the ECHR which held in Mennesson v. France (application No. 65192/11) and Labassee v. France (application No. 65941/11) of June 26, 2014, that children born from a regular surrogacy abroad suffered a violation of their right to respect for their private life (European Convention on Human Rights (hereinafter EConv.HR), Article 8) due to the impossibility of recognition or establishment of parentage with respect to their biological father. On 3 July 2015, the plenary assembly of the Court of Cassation complied with these judgments by allowing the transcription of the act mentioning the biological father and the surrogate mother.[4] In several judgments of July 5, 2017, the Court of Cassation admitted that the paternal filiation be recognized with respect to the biological father by partial transcription of the birth certificate mentioning the two members of the buying couple and that the maternal filiation be established with respect to the female buyer through adoption.[5] This solution is based on Article 47 of the Civil Code which provides that “Any act of the civil status of the French and foreigners made in a foreign country and written in the forms used in this country is authentic, unless other acts or documents held, external data or elements taken from the act itself establish, if necessary after any useful verifications, that such an act is irregular, falsified or that the facts stated therein do not correspond to reality.” Thus, a birth certificate established following a surrogacy and indicating the female buyer as the mother and not the surrogate mother cannot be authentic and cannot be transcribed, as the facts declared do not correspond to the reality since this it is not the female buyer who gave birth: in French law, the mother is indeed the woman who gives birth. It is this situation, in which the reality principle prevails, which is currently threatened by a pro-surrogacy offensive before the ECHR.

 G: What does this pro-surrogacy offensive at the ECHR consist of?

PK: It comes from two sources. On the one hand, in three individual applications currently pending,[6] the applicants complain of the refusal of the French authorities to transcribe in full on the French civil status registers the birth certificate established abroad by virtue of a surrogacy convention and mentioning the members of the buying couple as the father and mother of the children. The purpose of such a request is to automatically recognize a link of filiation between the child and each member of the couple who used this practice.

On the other hand, on October 5, 2018, the re-examination[7] of the Mennesson case by the French courts gave the Court of Cassation[8] the opportunity to address to the ECHR a request for an advisory opinion[9] on the issue of the transcription of foreign birth certificates mentioning the members of the buying partners as father and mother, particularly with respect to the refusal to transcribe the reference designating the female buyer as a mother. The Court has accepted this request[10] and even if the advisory opinion that may be issued would not be binding, such a reference to the ECHR is surprising because the question raised is the subject of a well-grounded solution in the case-law of the Court of Cassation.

The threat is therefore real, particularly that of interference in the process of revision of bioethics laws: given the exceptional rapidity shown by the ECHR to accept and communicate individual requests to the French government, there is every reason to believe that a decision of the Court will not be long delayed. For the first time, it is therefore the legal status of the “intended parent” that the ECHR is called upon to decide.

 G: How does the applicants’ complaint about the legal status of the intended parent prevailing in France appear illegitimate?

PK: To answer, one must first emphasize in this case the absence of any information on the existence of a genetic link between the child and the female buyer: yet the applicants would probably not have missed to put forward such an argument, had it existed.

The cornerstone of these cases is the best interests of the child that the Convention on the Rights of the Child (CRC) established as a superior principle (Article 3-1) and whose observance must, according to the ECHR, guide every decision concerning the child.[11] The identification of the true interest of the child is at stake but it is clear that it is being exploited by the applicants.

According to them, in their case, the child’s interest lies in the transcription of a false maternal affiliation with a woman who is not his mother since maternity is the result of childbirth and that there is no more genetic link between this woman and the child. In doing so, he would see his civil status permanently altered and have no way to access his origins. However, the possibility of adoption offered to the intended parent makes it possible to establish a filiation more in conformity with the reality and more respectful of the interest of the child, although objectively this is tantamount to endorsing the process of surrogacy which constitutes precisely a misuse of the purposes of adoption. Indeed, offering a family to a child who has been deprived of it remains fundamentally different from “producing” a child deliberately deprived of one of his biological ancestries, at least to make him adoptable, in order to satisfy a desire to have a child.^[12] It should be added, more generally, that surrogacy is in no way in the interest of the child who is treated as an object ordered, manufactured, sold^[13] by virtue of a contract, which violates the international treaties relating to, especially, international adoption, human trafficking, women’s and children’s rights. Thus, as a compromise between an extreme liberalization of surrogacy and a total refusal to take into account the intended parent, the current French situation appears compatible with the desire of the members of the couple to obtain a legal relationship between the child and each of them, while taking into account the interest of the child: contrary to the automatic and complete transcription of the foreign document, the adoption procedure expressly provides for the assessment of the situation by the courts in the best interests of the child, which includes his rights “to know and be cared for by his or her parents” (CRC, Art 7-1)[14] and “to preserve his or her identity” (CIDE, Article 8). The CCNE also indicates that there cannot be “question of accepting the transcription of a foreign civil status that does not correspond to the reality of the birth of the child. This corresponds to a requirement of transparency and truth regarding the child’s origins”.^[15] Moreover, the child still has his foreign civil status, can live with the sponsoring couple and acquire French nationality because of paternal filiation. It should be noted, however, that only the simple adoption by the intended parent can be considered to be in the best interest of the child since it alone allows him to maintain a connection with his past. Plenary adoption is in fact irrevocable and breaks any link between the child and his biological family (Civil Code, Art 354), any trace of the mother, the surrogate, thus being erased.[16]

This pro-surrogacy offensive is marked by a real manipulation of the child by the buying couples. The latter are applicants but the children are also when they are only 4, 6 and 8 years old: it is doubtful that at this age they are able to discern what is their interest, whereas the complaint does not concern the rights of adults but the right of children to respect for their private lives and the discriminatory infringement of this right on the basis of birth. If, in these cases, the child is indeed a victim, it is important not to mistake the guilty: it is not the French authorities as the applicants argue, but the buying couples who deliberately decided to give birth to children in the disadvantageous and inhumane conditions of surrogacy; all this with the complicity of States that are quick to issue deceptive birth certificates with potential serious psychological consequences that the child will carry for life.^[17] The concern for the interest of the child seems to have been very secondary in the eyes of couples and invoking it a posteriori to validate such acts is paradoxical. There is an abuse of rights, that is to say the use of human rights against themselves, which is expressly prohibited by the European Convention (Article 17), itself manipulated by the applicants.

G : What could be the outcome of these cases before the ECHR?

PK : The situation currently prevailing in France and which the applicants complain about respects the principles laid down by the ECHR which, logically, should therefore not condemn France.

Indeed, while surrogacy falls within the logic of a “right to a child”, it follows from the Court’s firm case-law that such a right is not guaranteed by any of Articles 8 or 12 of the Convention which respectively protect the “right to respect for private and family life” and “the right to marry and to found a family”: in the absence of a right to procreate,[18] a right to be a parent[19] and a right to adopt,[20] at most there is a “right to respect for decisions to become or not to become a parent”[21] and a “right to respect for ( the) decision to become genetic parents”.[22]

The ECHR is still seeking to recognize the right of the child to know his origins[23] as part of his right to identity, which is encompassed in the right to respect for private life. It has thus held that “Matters of relevance to personal development include details of a person’s identity as a human being and the vital interest protected by the Convention in obtaining information necessary to discover the truth concerning important aspects of one's personal identity, such as the identity of one’s parents”.[24] For the Court, “the right to an identity, which includes the right to know one’s parentage, is an integral part of the notion of private life” and “an individual’s interest in discovering his parentage does not disappear with age, quite the reverse”.[25] This right to know one’s origins would be disregarded if the Court ruled in the applicants’ favour.

In the present case, the ECHR is required to demand States to transcribe into civil status registries a false maternal affiliation with regard to a woman who does not, a priori, have a biological link with the child. However, as noted by the CCNE, “the ECHR (...) is also much attached to the reality of the child’s civil status, especially the biological reality”.[26] It emphasized “the importance of biological parentage as part of everyone’s identity”.[27] Indeed, its case-law relating to surrogacy confirms the importance accorded to the biological basis of filiation and the principle of reality, whether that be done to condemn a State that has not taken into account this link that existed[28] or to find no violation of the applicants’ rights in the absence of any biological link with the child,[29] thus pushing the intended parentage into a certain illegality. The ECHR would therefore contradict itself if it condemned France because that would imply that biological parentage does not matter.

Either way, while the Court has been able to convict States for refusing to recognize valid adoptions abroad but contravening the law of those States,[30] it seems much more cautious in cases of surrogacy by conceding to the States a certain freedom to define the conditions of reception of such a situation legally created abroad.[31]

G : What would the consequences of a conviction of France in these cases be?

PK : If the ECHR found that the absence of transcription of the foreign birth certificate in respect of the intended parent and the need for the latter to adopt the child violated the Convention, the consequences would be grave.

Broadly speaking, the Court would signify its acceptance in principle of the practice of surrogacy by requiring its validation a posteriori, at the level of its generating effects in the State of origin of the buying partners. These States would in fact be obliged to recognize the whole of the lying filiation on the foreign birth certificate. They would therefore have the obligation to accept surrogacy in its very principle by giving it automatic effect if it was lawfully practiced abroad, even though they would prohibit it on their soil. They should bow to the fait accompli by rewarding, at the expense of the common good, premeditated illegal conduct: this would be tantamount to bringing European legislation in line with the most permissive in the world.^[32] Like a “government of the judges”, it would be a notorious intrusion into the sovereignty of the States on a highly sensitive issue from a human and ethical point of view since their freedom not to recognize effects to surrogacy practiced abroad would be annihilated. In a “Motion for a resolution calling for a universal ban on surrogacy”, presented to the French National Assembly on May 22, 2018, forty deputies worried about the prohibition of public order of the surrogacy in France being little by little emptied of its substance because of “regular hits of the French courts weakening it”,[33] especially under the pressure of the ECHR. Thus a conviction from it would be the coup de grace: it would indeed be enough to go abroad to get what is prohibited in France. A genuine right to travel abroad to realize a desire to have a child through surrogacy would thus be created, encouraging reproductive tourism which, paradoxically, would benefit from the protection of the Convention.

In addition, the conception of filiation would be deeply modified. While maternity is based on childbirth in most states,[34] in the sense that the indication of the mother’s name in the birth certificate is sufficient to establish maternal parentage, the Court would abolish this fundamental secular principle, which is based on the motto Mater semper certa est. The acceptance by the Court of a filiation of pure convenience established at the individual will of adults would amount to giving the filiation a perfectly positivist definition, independent of reality, contrary to the principle of unavailability of the human body and making it possible to dispose of the story of a child. It would be inadmissible, however, for the field of human procreation and filiation to be abandoned to the offer of the surrogate industry and to the request of children by adults, whereas the Court has already recalled the exclusive jurisdiction of the State to recognize parentage in the event of a biological link or regular adoption.[35] These cases thus question the role and the reliability of the civil status: does the latter serve to fulfil personal desires or does it pursue an objective of general interest?

A conviction by the ECHR would also constitute a significant reversal in its jurisprudence on the right to identity and thereby a serious decline in human rights in general and that of women and children in particular. They would be violated in favour of the right to a child and the omnipotence of the individual will of adults: the weakest would be sacrificed for the benefit of the fittest, the biological contingencies peculiar to the human being would be to the benefit of the realization of individual selfish desires.

Thus, given the stakes of the problem in question, it is to be hoped that the ECHR will fully assume the role of “conscience of Europe” that it claims and will take this opportunity to condemn the practice of surrogacy  or at least to limit its effects. Because of its guilty benevolence towards scammers to the law, the European Court gives them the hope not only of not being sentenced but of being later recognized in their right. The legal answer to give to surrogacy was simple. By refusing to clearly condemn it, the ECHR is now responsible for the increasingly inextricable situations presented to it. Interpretive dynamism is not only an attack on the sovereignty of States. It is also a factor of instability and unpredictability of the law that directly harms children.

Moreover, the Court is very likely to be seized in a more or less near future by people born of surrogates who will complain of being robbed of their filiation and of a part of their identity. In the same way, the ECHR is currently seized by persons conceived by medically assisted procreation with anonymous donation of sperm[36] who complain about the deprivation of access to paternal genetic origins: that is the proof, if needed, that being cut off from part of one’s genetic filiation is problematic to build one’s own identity and constitutes an injustice causing serious suffering.

[1] CCNE, Avis n° 129, Contribution du Comité consultatif national d’éthique à la révision de la loi de bioéthique, 25.09.2018, p. 124.

[2] Understood as the supposition of a child, surrogacy is punished by three years of imprisonment and a 45,000 euros fine (Criminal Code, Art. 227-13). (free translation)

[3] Cass. 1ère, civ., 6.04.2011 (10-19.053); Cass. 1ère, civ., 13.09.2013 (12-18.315).

[4] Cass. Ass. Plén., 3.07.2015 (14-21.323 and 15-50.002).

[5] Cass. 1ère, civ., 5.07.2017 (15-28.597, 16-16.901, 16-50.025, 16-16.455 and 16-16.495).

[6] Braun v. France, no. 1462/18; D. v. France, no. 11288/18; Maillard v. France, no. 17348/18.

[7] Possibility given by law no. 2016-1547 of 18 November 2016 of modernisation of justice of the XXI^st c.

[8] Cass. Ass. Plén., 5.10.2018 (10-19.053).

[9] Possibility given by entry into force of Protocol no.16 to the Convention on Human Rights on 1^st August 2018.

[10] First request for an advisory opinion under Protocol no.16, 23 October 2018, available here.

[11] Mennesson v. France, no. 65192/11, 26.06.2014, § 99.

[12] As denounced in the Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, « Etude sur les adoptions illégales », 22.12.2016, A/HRC/34/55, § 52.

[13] See notably Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, 15.01.2018, A/HRC/37/60, § 41 and 69.

[14] This right refers to the biological father and mother of the child, not to “intended parents”: Committee on the Rights of the Child, General Comment no. 14 (2013), CRC/C/GC/14, (V.A.1), § 56; Concluding observations United Kingdom of Great Britain and Northern Ireland, CRC / C / 15 / Add.188, 9.10.2002, § 31-32. This is in line with Principle 28 of the Report of the European Committee on Legal Co-operation of the Council of Europe on the principles relating to the establishment and legal consequences of parentage – “Le Livre Blanc”, 2004, CJ-FA (2006) 4 f: “The law must take due account of the interest of the child in information relating to his biological origin.”

[15] CCNE, opinion no. 126, Avis du CCNE sur les demandes sociétales de recours à l’assistance médicale à la procréation (AMP), 15.06.2017, p. 39.

[16] The plenary adoption validated by  the Court of Appeal of Paris on September 18, 2018, in a case of surrogacy undertaken abroad by two men, is thus stumping: « GPA à l'étranger : pourquoi la cour d'appel de Paris dénie l'intérêt supérieur de l'enfant », Valeurs actuelles, 21.09.2018 ; Yohan Blavignat, « Enfants nés de GPA à l'étranger : adoption plénière accordée à l'époux du père biologique », Le Figaro, 20.09.2018.

[17] Conférence de la Haye de droit international privé, A Study of Legal Parentage and the Issues Arising from International Surrogacy Arrangements, Mars 2014, Dov. prél. No 3C (the study), § 188.

[18] Šijakova and others v. “the Former Yugoslav Republic of Macedonia” no. 67914/01, 6.03.2003, § 3; S.H. v. Austria, no. 57813/00, 15.11.2007, § 4.

[19] S.H. v. Austria, no. 57813/00, 15.11.2007, § 4.

[20] Emonet and others v. Switzerland, no. 39051/03, 13.12.2007; Paradiso and Campanelli v. Italy [GC], no. 25358/12, 24 01.2017, § 141.

[21] Evans v. the United Kingdom [GC], no. 6339/05, 10.04.2007, § 71; S.H. v. Austria, no. 57813/00, 1.04.2010, § 58.

[22] Dickson v. the United Kingdom [GC], no. 44362/04, 4.12.2007, § 66.

[23] See e.g. Mikulic v. Croatie, no. 53176/99, 4.09.2002.

[24] Odièvre v. France [GC], no. 42326/98, 13.02.2003, § 29; Phinikaridou v. Cyprus, no. 23890/02, 20.12.2007, § 45.

[25] Jäggi v. Switzerland, no. 58757/00, 13.07.2006, § 37 and 40.

[26] CCNE, opinion no. 126, Avis du CCNE sur les demandes sociétales de recours à l’assistance médicale à la procréation (AMP), 15.06.2017, p. 38.

[27] Mennesson v. France, no. 65192/11, 26.06.2014, § 100.

[28] Mennesson v. France, no. 65192/11, 26.06.2014.

[29] Paradiso and Campanelli v. Italy [GC], no. 25358/12, 24.01.2017.

[30] Wagner v. Luxembourg, no. 76240/01, 28.06.2007 ; Negrepontis-Giannisis v. Grèce, no. 56759/08, 2.05.2011.

[31] Paradiso and Campanelli v. Italy [GC], no. 25358/12, 24.01.2017, § 180.

[32] Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, 15.01.2018, A/HRC/37/60, § 41 and 69.; CCNE, opinion no. 110, 1.04.2010, « Problèmes éthiques soulevés par la gestation pour autrui », p. 5.

[33] Proposition de Résolution appelant à une interdiction universelle de la gestation pour autrui, recorded in the Presidency of the National Assembly on 22 May 2018, no. 972, available here.

[34] This is Principle 1 of the Report of the CDCJ on Principles on the Establishment and Legal Consequences of Parentage - ‘Le Livre blanc’, May 2004, CJ-FA (2006) 4f, p. 7: “The woman who gives birth to the child is considered as his mother”. This principle is in force in all States of the International Commission on Civil Status: see Frédérique Granet, surrogacy and the civil status of the child in ICCS member states, February 2014; Hague Conference on Private International Law, Study on legal parentage and issues arising from international surrogacy conventions, March 2014, Dov. Prel. No. 3C (The Study); Clotilde Brunetti-Pons (dir.) et al., Le « droit à l’enfant » et la filiation en France et dans le monde, Rapport final de la Mission de recherche Droit et Justice, CEJESCO de l’Université de Reims, 2017.

[35] Paradiso and Campanelli v. Italy [GC], no. 25358/12, 24.01.2017, § 177 and 197.

[36] Gauvin-Fournis v. France, no. 21424/16 and Silliau v. France, no. 45728/17.