The author of this post is François Mailhé (University of Picardy – Jules Verne).
“Nul n’a de droit à l’enfant”, that is, no one has a right to a child. This is the first amendment the French Senate has recently added to the latest reform of the Bioethics Act 1994 under discussion in Parliament this month, and which is intended to introduce Title VII of the First book of the civil code “on filiation”.
The Senate is the higher chamber of Parliament, with members elected by elected officials from local governments. It participates in the discussion of all legislative projects with the National Assembly (lower chamber), but the latter would ultimately prevail in case of conflict.
I reported earlier on the three judgments of the French supreme court for civil and criminal matters (Cour de cassation) which, on 18 December 2019, extended the recognition on foreign surrogacies in France. These judgments were expressly based on an advisory opinion concerning the recognition of legal parent-child relationships between a child born through a gestational surrogacy arrangement abroad and the intended mother, given by the European Court of Human Rights (ECtHR) in April 2019.
Surprisingly, the Cour de cassation had gone much further than the ECtHR, though, allowing direct recognition of the filiation for all parents appearing on the birth certificate, while the ECtHR had only required for the recognition of the biological father one.
What happened next is even more surprising if not unique in French legislative history.
On 7 January 2020, the Senate chose to oppose the Cour de cassation case-law, on a private international law issue, to better align French law on the ECHR solution. Amendment No 333 to the Bioethics Act reform would, if passed, create a new article 47-1 of the Code civil, drafted as follows:
Any civil status record or judgment for a French citizen or a foreigner made in a foreign country and establishing the filiation of a child born as a result of a surrogacy agreement shall not be transcribed in the registers in so far as it refers as mother to a woman other than the one who gave birth or when it mentions two fathers.
The provisions of the preceding paragraph shall not prevent the partial transcription of this act or judgment or the establishment of a second parent-child relationship under the conditions of Title VIII of this Book [on adoption], where such conditions are met.
The Amendment would in fact bring the French system back to what it was after the rulings rendered by the Cour de cassation in July 2017, and in line with the ECtHR opinion of April 2019. In practice, the biological father would be the only “intended parent” to be recognised as such through direct transcription. His husband or wife would only have a right to adopt the child at a later stage (as long as the procedure of adoption is not unreasonably long, which should not be the case under French law for the adoption of the husband’s child).
As the government backed a similar amendment, though milder than the one eventually adopted, it seems probable the National Assembly will not much alter it.
The change brought about by the rulings of the Cour de cassation of 4 October and 18 December 2019 may therefore be short-lived.
Foreign surrogacy agreements may not be so much welcome in France after all.