On June 27, the National Consultative Ethics Committee voted for Medically Assisted Reproduction (PMA) for single women and lesbians, but recalled its fervent opposition to surrogacy (Surrogacy). This Wednesday, it was the Court of Cassation which had to rule on the subject, in two surrogacy cases carried out abroad by French parents. It distinctly concludes that direct parentage can take place for the father, but not for the mother, and that adoption by the second parent is possible.
The mother is the woman who gives birth
In the first case, a heterosexual couple had recourse to surrogacy in Ukraine and wanted the transcription of the civil status of the two twins thus born, mentioning, in accordance with the law of this country, the intended parents as father and mother. . The Court of Cassation considers that the birth certificate cannot be directly translated, because the mother is considered in French law as the woman who gives birth. In this case, that would amount to naming as mother the woman who bore the child but who is not at the origin of the will to become pregnant.
The Court specifies, however, that the designation of the father must be transcribed if the foreign document is not falsified. In addition, the ban on surrogacy in France aims to protect children and surrogate mothers. In this context, the partial transcription (only the father) of the civil status certificate must not infringe respect for the child’s private and family life. Concretely, the French authorities must allow the child to live with his family, issue him a certificate of French nationality and authorize the adoption by the wife of the father.
Surrogacy does not prohibit adoption
In the second case, a baby boy was born from a surrogacy in the United States, initiated by a couple of married men. The question was whether the use of this procreation technique, prohibited on French soil, could constitute an obstacle to the adoption of the father who did not give his gametes in the fertilization process.
To respond to this request, the Court of Cassation is based on the Taubira law authorizing marriage for all, “the adoption and establishment of a bond of filiation between a child and two persons of the same sex, without any relative restriction. to the mode of procreation ”. The recourse to surrogacy cannot therefore constitute a sufficient reason for the refusal of adoption up to now opposed to the second father. The authorization of this form of filiation must be decided by the judge, responsible for verifying the legal conditions of adoption in the interests of the child.
Mixed reactions to this shutdown
Since the rendering of these two judgments, opinions diverge on the question. Some believe that the best interests of the child require full filiation. Maître Caroline Mécary, a lawyer specializing in these issues, believes that “the Court of Cassation has just cut off the filiation of children born to surrogacy by refusing the full transcription of their foreign birth certificate”. The others denounce a “puzzle filiation”: “we can see that the recognition of the intended parent would go in the direction of a commodification of the human and the uberization of filiation”, maintains Ludovine de la Rochère, of the strike for all.
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