What about the transcription on the French civil status of a surrogacy conceived in California, USA? What about the recognition of the parentage of the intended parent? Evolution of favorable case law extended to homosexual intending parents.
It is advisable to look at a case law which was rendered last December and which addresses the specific question of surrogacy in the United States of America, and especially of the transcription on the French civil status of the recognition of paternity of the child.
What are the facts ?
In fact, in this case, a homosexual couple, one of whom is of French nationality and the other of Belgian nationality, had recourse to childbirth in California.
One of the two men is a sperm donor while the second also intends to be a father.
At the end of the surrogacy, two children are born in California and since this is legal in the United States, the California civil registry recognizes the parentage of the sperm donor as being the father and his spouse as being the intended parent of both children.
What about the return to France?
Quite naturally, the latter returned to France and requested the transcription on the French civil status of the parentage of the two men with regard to the two children on the birth certificates and the latter objected to a refusal of transcription by the Nantes civil status services.
It should be recalled that surrogacy is officially condemned in France since a case law of the Court of Cassation Plenary Assembly of May 31, 1991 which recalled, through the principle of unavailability of the human body, that surrogacy was illegal. in France.
The Court of Cassation then specified in a resounding principle, that the agreement by which a woman undertakes to be able to conceive and bear a child free of charge and then abandon it at birth, so violates the principle of the unavailability of the human body than that of the unavailability of the state of people.
The Court of Cassation affirming by the same that any surrogacy agreement was then declared null and above all, in addition to the nullity of the agreement, the Court of Cassation considered that all the effects that could be closely or remotely related to the gestation pour autrui could not produce any effect whatsoever in France with regard to filiation.
Therefore, the Court of Cassation prohibited any form of legal attachment of the child to his parents, both through attempts to transcribe the civil status and also through adoption, in particular full adoption.
Legislative reform of article 16-7 of the Civil Code
The legislator subsequently came to legislate, through the bioethics law of 1994 and through the new article 16-7 of the Civil Code which provides that any agreement relating to the procreation of gestation on behalf of others is void.
However, it is true that, little by little, strengthened by this principle of the nullity of surrogacy, case law gradually returned to this principle and began to recognize the sometimes paternal filiation, in particular with regard to the donor. semen but also with regard to the intended parent.
In fact, as early as 2014, the European Court of Human Rights in a Mennesson judgment against France, condemned France for having refused the transcription of paternal filiation based on a purely biological reality since he was the sperm donor. .
Then, on the strength of this case-law of the ECHR, had in two judgments delivered on July 3, 2015 in plenary assembly, the Court of Cassation reversed its position of May 31, 1991 and considered that the transcription of the biological father in the civil status French of a birth certificate drawn up in execution of a foreign decision on the grounds that the birth certificate was neither regular nor falsified and that the declared facts corresponded to reality was therefore perfectly lawful.
Case law reversal of 2015 and transcription on French civil status
The transcription on the French civil status was therefore accepted because the birth certificate of the child drawn up abroad corresponded to a biological reality since the father was indeed the father of the child and the sperm donor. .
In a previous case law of August 4, 2019, the Court of Cassation also authorized the intended parent, the mother in this case to recognize the maternal filiation link, to authorize the transcription and this on the grounds of the infringement of the right. and respect for the private life of children by refusing to transcribe in the civil status registers their birth certificates drawn up abroad.
Finally, in October 2019 the Court of Cassation therefore ended up recognizing the maternal filiation link of the intended mother and also allowing the recognition of the homosexual intended parent as being able to benefit from a transcription on the civil status of both parents. for the two children.
Recognition of the parentage of the intended homosexual parent
The use of surrogacy abroad does not prevent the recognition of the parentage link, not only in biological terms but also as an intended parent as soon as the civil status documents abroad comply with reality and it does not matter whether it is a father and a mother or two fathers or two mothers.
This case law is interesting because not only does it respond to the evolution of case law related to the surrogacy of a lawful child abroad but also in France and for which both parents can now be biological parents and heterosexual intended parents. or homosexuals and can now proceed with the transcription of the parentage link in the French civil status registers.
Article written by Maître Laurent LATAPIE,
Lawyer, Doctor of Law,