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The prohibition of surrogate motherhood in France

The French pro­hi­bi­tion of sur­ro­gate moth­er­hood, rest­ing on moral and eth­i­cal con­sid­er­a­tions, rais­es com­plex issues of pri­vate inter­na­tion­al law.

Sur­ro­gate moth­er­hood has been pro­hib­it­ed in France since 1991, under a deci­sion by the Cour de cas­sa­tion (France’s high­est court), (Cass. Ass. plén., 31/05/1991). This pro­hi­bi­tion was con­firmed in the bioethics law of 1994, and is cod­i­fied in arti­cle 16–7 of French Civ­il Code (“Civ­il Code”). Arti­cle 16–9 of the Civ­il Code makes this a pro­hi­bi­tion of pub­lic order (In France, pro­hi­bi­tions of ordre pub­lic or pub­lic order are manda­to­ry rules cre­at­ed uni­lat­er­al­ly by the state to pro­tect fun­da­men­tal val­ues of the soci­ety, and from which par­ties have no free­dom to dero­gate. A for­eign law applic­a­ble under a con­flict of laws analy­sis would be evict­ed if con­trary to a manda­to­ry rule). A sur­ro­ga­cy con­tract is null and void, and vio­la­tions are pun­ished by civ­il and crim­i­nal sanc­tions (civ­il sanc­tions are described in arti­cles 311–25, 325 and 332–1 of the Civ­il Code and crim­i­nal sanc­tions at arti­cles 227–12 §3 and 227–13 of the Penal Code).

The pro­hi­bi­tion is jus­ti­fied by dif­fer­ent moral and eth­i­cal con­cerns: to pre­vent chil­dren from becom­ing com­modi­ties trad­ed as mer­chan­dise between infer­tile cou­ples and sur­ro­gate moth­ers; to pro­tect the inter­est of chil­dren who are psy­cho­log­i­cal­ly at risk in such trans­ac­tion; and to pre­vent the exploita­tion of sur­ro­gate moth­ers who must relin­quish parental rights to the child after giv­ing birth. Sur­ro­gate moth­ers are usu­al­ly from low­er eco­nom­ic stra­ta and are eco­nom­i­cal­ly exploit­ed in this trans­ac­tion. Sta­tis­ti­cal­ly there is an inher­ent social divi­sion in this prac­tice. This is evinced by the fact that most sur­ro­ga­cy con­tracts require com­pen­sa­tion because very few women would bear some­one else’s child for free. This social divi­sion is not new – sur­ro­gate moth­ers were slaves in the days of the Bible and Ancient Rome.

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