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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.

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.

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