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.
Recent decisions in French courts illustrate the complexity of enforcing this prohibition in a globalized world, where other states permit surrogacy contracts, and infertile parents can go abroad to find surrogate mothers. (See e.g CA 1e, Section C, 26/02/2009, CA, pôle 1, Ch. 1, 18/03/2010; Cass. A.P, 31/05 /1991; Cass. Civ. 1e, 9/12/2003) In a December 2008 decision, the Cour de cassation (Cass. Civ. 1e, 17/12/2008) annulled the transcript of the birth certificate of two children because their legal parents had enlisted the services of a surrogate mother in California. The Court so ruled even though the children had obtained their birth certificates in California and were U.S citizens. The French high court confirmed this annulment, holding that French citizens cannot go abroad to circumvent French surrogacy laws. Thus, French judges have held that a foreign document (the Californian birth certificate in this case) shall not be given the exequatur if it is against French international public order or if it is fraudulent (in France an exequatur is a judgment by which a tribunal states that a decision issued by a foreign tribunal should be executed in France).
The high court’s decision jeopardizes the most important objective that the prohibition against surrogate motherhood was designed to achieve: protecting the superior interest of the child. Pursuant to the Cour de cassation’s ruling, the child lacks legal status in France because he is neither recognized as the child of the French couple nor as the child of the surrogate mother. Furthermore, this decision absurdly results in having a child’s filiation recognized in one country but not in France, thus depriving him of the continuity of his legal status. France unjustly denies legal status to children for the mistakes of their parents. Rather it is their parents’ actions that deserve legal sanction.
France must adopt new legislation to avoid creating a class of children without status. Different options were contemplated: to permit the adoption by the biological father and his wife; to establish a filiation with the biological father and delegating parental authority to the intended mother; or to legalize but strictly regulate surrogacy (e.g: no remuneration and strict eligibility requirements for couples and surrogate mothers). French public opinion mostly favored the legalization of surrogacy and supported greater autonomy from state interference in matters of marriage, family and procreation. The French Senate also favored regulated authorization of surrogate motherhood. The Council of State (Conseil d’Etat) supported the prohibition but proposed accommodations for children born abroad in order to preserve their legal status in France.
Despite the broad support for reform and legalization, the prohibition was nevertheless reaffirmed during the revision of bioethics laws in 2009–2010 due to a wide consensus within the committee in charge of revising the law, finding that surrogacy is incompatible with French moral principles and human dignity. Using examples from countries that have legalized surrogacy, the committee argued that legalization would have negative effects in France. Among other effects, legalization would create more cases of surrogacy and would not stop dangerous clandestine contracts (contracts not complying with certain legal rules such as the absence of compensation, or lacking proper medical oversight). Legalization would also create bias in favor of one party over the other. For example, in the United Kingdom the law favors surrogate mothers and creates insecurity for adopting couples by allowing surrogate mothers to keep the child after birth. In Greece, however, once the surrogate contract is signed, the surrogate mother is left with no rights as the adopting couple becomes the sole legally recognized parents. The committee also rejected the possibility of allowing ex-post adoption because it validates a system in which children are programmed to be abandoned at birth. Surrogacy is radically different from adoption because adoption is an ex-post remedy for existing situations of abandonment, whereas surrogacy would create and incentivize abandonment ex-ante.
Since 2010, French courts have consistently followed this line, denying both adoption and recognition of children born abroad from surrogate mothers. Their decisions rest on the enforcement of French public order. Because surrogate motherhood is against fundamental ethical principles, this practice should not only be prohibited in France but children born abroad from surrogate mothers should also not be recognized with legal status. From the courts’ point of view, the fact that other countries permit surrogacy should not justify the adoption of a practice contrary to French public order. Otherwise it would give rise to endless claims that France should adopt other condemnable foreign practices like polygamy and repudiation on the pretext that it is allowed abroad. On the contrary, France should have stricter rules to protect the coherence of its legal system and public policy. The courts are also concerned with the efficiency of the prohibition. An effective prohibition is one that deters surrogacy altogether. According to the judges, recognizing foreign surrogacy would incentivize infertile couples to sidestep French law by going abroad for surrogacy services and returning afterwards with the child. Moreover, recognition would ultimately lead to legalization because it would not be sustainable to simultaneously prohibit surrogacy in France while recognizing the legality of foreign surrogate contracts. Finally, French courts point out that the child’s best interest is intact because he still has a legal status in the foreign country where the surrogacy contract was formed. But this reasoning has not resolved the issue.
The 2008 case came back before the Cour de cassation in April 2011 (Cass. Civ. 1e, 6/04/2011, n° 10–19.053). The French Supreme Court confirmed its 2008 decision under the same rational and also ruled against surrogacy contracts in two other cases. (Cass. 1e Civ., 6/04/2011, n° 09–66.486; Cass. 1e Civ., 6/04/2011, n° 09–17.130).
The French couple, whose child’s birth certificate was annulled, intends to appeal the Cour de cassation decision before the European Court of Human Rights (ECHR). The ECHR tends to favor the protection of the family and children (See e.g ECHR Kroon v. Netherlands, 27/10/1994; ECHR Wagner v. Luxembourg, 28/06/2007), and could very likely condemn France on those grounds for denying the children French citizenship. Given the European integration and the ECHR’s ability to control French judicial decisions, France may be compelled to change its position to comply with European decisions. The important and necessary changes on surrogacy policy in France will thus have to come from the European Union.