The author of this post is François Mailhé (University of Amiens).
On 18 December 2019, in three decisions, the French Cour de cassation decided to go one (last?) step further in the efficiency of foreign surrogacy and other medically-assisted procedures (MAPs): the birth certificate mentioning one man as “father” and another man as “parent”, or one woman as “mother” and another as “parent”, may be recorded in the French civil registry.
In the first two cases, couples of men (one of them French and Belgian, the other only French) had come back to France after a short trip to the United States (respectively California and Nevada) with children born from a surrogate mother. The birth certificates all mentioned one man as “father” and the other as “parent”. In the third case, a couple of women came back from London with two children, each with a birth certificate establishing one of them as “mother” and the other as “parent”.
In the three cases, the Cour de cassation decided to reverse its previous case-law according to which the transcription of a birth certificate was not allowed for the “mother” if she had not given birth to the child. It surprisingly based this solution on Article 8 of the European Convention on Human Rights and the European Court of Human Rights’ advisory opinion of April 2019 and its own decision of 4 October 2019. The European Court had actually said that there was no obligation to do so, and the 4 October decision by the Cour de cassation had chosen to approve the direct transcription for the mother on a very casuistic analysis, the litigation having lasted for more than 15 years (it was the end of the famous Menesson case).
As unconvincing as the analogy with this last case may be, the three rulings of December 2019 are in line with the function of the transcription on civil registries under French law, which only serve at documenting a legal situation, without verifying it. In principle, the French system thus disconnects the transcription from the recognition of the foreign situation. In matters of foreign surrogacy, though, the Cour has previously made clear that it considers the transcription to be a good substitute to other means of establishment of the legal status itself.
Those three cases, therefore, have a greater ambit than both the claim (the transcription) and even the couples involved (same-sex couples, both male and female) may let one think. Indeed, the Cour itself states in the two first cases that there should be no difference between the question of a mother of intent in a different-sex couple or a “parent” in a same-sex couple. The Cour de cassation has therefore simply abandoned its hostile stance against foreign surrogacy and MAPs in general. It considers their prohibition in French law to be purely domestic and allows those performed abroad.
Now parents should be aware that the recognition effect that the Cour is seeking to provide through transcription is not yet guaranteed. If transcription may be efficient, in practice, against the French State and its authorities (who did not dare and waste resources challenging again the relationship on its very existence), there is no reason it should be so against other interested persons, such as other parents challenging the existence of this parent-child relationship.
But Niboyet’s “law of the maximum difference” (between international and domestic situations) may yet again push for a convergence of French domestic law with its international liberalism.
And, if not, Article 8 ECHR may also reveal new protections, again.