Recognition of the parent-child relationship as a result of surrogacy and the best interest of the child
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Recognition of the parent-child relationship as a result of surrogacy and the best interest of the child How will France adapt after the ECtHR rulings Isabelle Rein Lescastereyres1
Published online: 25 August 2015 © ERA 2015
Abstract Until now France has always refused to recognise any parent-child relationship as a result of surrogacy. All petitions for recognition were refused first on the grounds of public policy and then on the grounds of fraudulent process including towards a biological parent. Having been condemned on the basis that children born from surrogacy abroad suffer from an infringement regarding their right of respect to their private life, France will have to modify its position. On 3 July 2015 the French Cour de Cassation found that a fraudulent process can no longer prevent the registration of the particulars of the birth in the French register of civil status, provided that the foreign birth certificate was regular and that its details were accurate. Yet many questions remain open, including the interpretation of the ECtHR rulings. But whatever interpretation is chosen, it will call for a deep reform of the very definition of parent-child relationship in the French legal system. Keywords Surrogacy · Public policy · Fraudulent process · Right to respect for private life · Nationality
This article is based on a presentation given at the ERA conference “Recent case law of the European Court of Human Rights in family matters” on 18–19 February 2015 which took place in Strasbourg. The article has been substantially revised due to the recent case law of the French Cour de Cassation.
B I. Rein Lescastereyres, Avocat au barreau de Paris [email protected]
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BWG Associés, 9 villa Aublet, 75017 Paris, France
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I. Rein Lescastereyres
1 France’s view on surrogacy 1.1 France does not allow surrogacy agreements It comes as no surprise to those familiar with the Mennesson v. France1 that France does not allow surrogacy agreements. According to Article 16, Paragraph 7 of the French Civil Code: “All agreements relating to procreation or gestation on behalf of a third party are void”. Such prohibition is grounded in two paramount principles of bioethics laid down in Article 16 and Article 16, Paragraph 1 of the French Civil Code: dignity of the human body and the fact that it is inviolable and may not form the object of any patrimonial right. In order to ensure its respect, such civil prohibition is combined with criminal penalties. The first one, liaising between an intended couple and a surrogate mother2 only concerns potential intermediaries (agencies, doctors, lawyers, etc.), not the intended parents or the surrogate mother. The second one refers to wilful substitution, false representation or concealment which infringes the civil status of a child.3 In relation to surrogacy, the simulation consists of granting the status of mother to a woman who did not give birth to the child. Indeed in France the mother is still the woman who gives birth to the child. As for concealment, it lies in hiding the i
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