"Was it something I said?” Whistleblowing during the pandemic
Natasha Forman (née Koshnitsky)
Unlike the “halfway house” position in the UK, all forms of surrogacy are strictly forbidden in France. A contract between a surrogate and the intended parents is void and there are criminal consequences. Any intermediary (e.g. agencies, doctors and clinics) would also be committing a criminal offence and the penalty is doubled if they are acting on a commercial basis.
The French legal position on surrogacy is very clear and there is no doubt it is prohibited. There are calls for the authorisation of some forms of surrogacy but there has, as yet, been no debate in Parliament.
A debate has nonetheless emerged relating to the return of intended parents to France following the birth abroad of their surrogate child and relating to the child’s status under French law. In this area, there have been developments over the last few years.
Until 2014, children born to a surrogate mother were not recognised in France. Even where the intended parents had a foreign order recognising them as the parents, the French authorities refused the registration of these children in the civil register. There was no real case law to give any guidance.
In January 2013, the Minister of Justice issued a circular requiring the granting of a citizenship certificate to surrogate children with French parents.
A year later, the European Court of Human Rights condemned France for refusing to recognise these children’s origins in breach of their identity and right to family law.
Since then, the French Court of Appeal (“cour de cassation”) has recognised the need to protect the child and his/her privacy. However, registration of surrogate children on the French civil register is not automatic. The lineage must be judicially proved by expert evidence. If neither of the intended parents is genetically related to the child, the registration on the civil register will be impossible.
As a consequence, as things stand currently, a genetic link remains necessary under French law to allow a child to be registered. The parent who has given the gametes, usually the father, will be recognised as a parent. The intended parent who does not have a genetic link will not be recognised as a parent and won’t be able to adopt the child (as it is considered to be against the purpose of adoption).
The law is slowly developing and a French court decision was made in July 2017 which makes some progress for same sex couples, though not enough. France's highest court decided that a child born to a surrogate mother could be adopted by the husband of the child’s biological father. A ‘simple adoption’ by heterosexual couples is also possible under French law but this does not extinguish the parentage of the woman who gave birth to the child.
You may also be interested in reading more about international surrogacy and the position in the UK HERE. Further information can also be found on our Frequently Asked Questions page about surrogacy and our previous blogs.
Thank you to Flora Cassoudesalle for her contributions to this blog.
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