The French surrogacy debate: être et avoir

    The Cour de Cassation (Court of Cassation), France’s highest court, has ruled that children born to surrogates abroad can be recognised by the state. They will have the right to be granted French birth certificates and be able to claim French citizenship.

    The court was asked to consider two cases involving French fathers, who claimed to have children by foreign surrogate mothers in Russia. The children’s birth certificates were drawn up in Russia and the fathers had applied for the transcription of the Russian birth certificates into the French birth registers. These applications had been refused by the Public Prosecutor, who suspected the use of a surrogate mother.

    Until this ruling such children, born abroad to a foreign surrogate, would effectively end up stateless, even if they were the acknowledged child of a French parent. However, the European Court of Human Rights ruled last year that to deny a child born overseas to a French parent the right to be included in the French birth registry contravenes Article 8 of the European Convention on Human Rights, because it would deny the child the right to establish an identity.

    Droit du sang

    Article 18 of the French Civil Code – which governs the droit du sang – states that a child who has at least one French parent is French. In the two cases before the Court of Casssation, the only factor preventing the children attaining French citizenship was the fact that they were born to surrogate mothers abroad.

    According to a statement made by the Court of Cassation, ‘Surrogate motherhood alone cannot justify the refusal to transcribe into French birth registers the foreign birth certificate of a child who has one French parent’.

    Christiane Taubira, the French Minister of Justice, stated: “Children shouldn’t answer for the way they have been conceived. They have the right to their civil status and identity”. Taubira was also responsible for introducing France’s same-sex marriage legislation.

    The landmark ruling has been greeted enthusiastically in some quarters, raising optimism that it will pave the way for more diverse, modern family forms becoming legally acceptable in France. However, others feel that it has not gone far enough, as the ruling only allows for the biological father and the birth mother to be included on the birth certificate. In order to extend parentage to more than two people – such as in the case of gay couples, where a non-biological parent may wish to be acknowledged as well as the biological parents – more work will need to be done.

    The court was keen to stress, however, that surrogacy remains illegal in France, despite this ruling. Surrogacy, whether for commercial or altruistic reasons, is considered contrary to public policy in France.