This post was contributed by Christine Bidaud, who is Professor at the University Jean Moulin – Lyon 3, co-director of the Family Law Center and member of the Research team Louis Josserand.
French Background on Recognition of Foreign Birth Certificates of Children Born Abroad by Surrogacy
If there is one subject that divides not only jurists but also States, it is certainly surrogacy. Legal in some countries, prohibited in others, and unregulated in still others, each State develops its own law according to the social mores, values, and history of its society. But it is one thing to prohibit the practice of surrogacy on one’s own territory and another to consider the parenthood of a child born abroad by surrogacy. The French Cour de Cassation has well understood this.
Without going back over the details of the evolution of its case-law, it should be remembered that at first, the Cour de cassation refused to recognise or authorise the recognition in France of the parenthood of children born abroad by surrogacy (see Cour de Cassation, 1st Civil Chamber, 6 April 2011, n° 10-19053, Mennesson, n°09-66486, Labassée & n° 09-17130 and Cour de cassation, 13 September 2013, n°12-18315 & n°12-30138). The Court then accepted the partial transcription of the child’s foreign birth certificate in French civil status registers by limiting it to the biological parent (see Cour de Cassation, Plenary session, 3 July 2015, n°14-21323 & n°15-50002). The second parent, whether a man or a woman, had to adopt the child to establish his or her parenthood. Until the law of 21 February 2022, a requirement for such adoption was that the couple be married.
The Cour de Cassation then decided to go further. Even if in its opinion of 10 April 2019, the ECtHR did not require it, the Cour de Cassation decided to authorise the full transcription of the child’s foreign birth certificate in the French civil status registers. Initially presented as an exceptional solution justified by the circumstances of the Mennesson case, the Cour de Cassation finally generalised this solution (see Cour de cassation, 1st Civil Chamber, 18 December 2019, n° 18-11815 & n° 18-12337 and recently Cour de cassation, 1st Civil Chamber, 13 January 2021, n° 19-17929). The French case law seemed to be well established and yet…
2021 Reform of Article 47 of the French Civil Code
The law on bioethics of 2 August 2021 reformed Article 47 of the Civil Code, which governs the evidentiary value of foreign civil status documents. Even if the evidentiary value of foreign civil status documents must be distinguished from the recognition of parenthood, the two issues are “dangerously” intertwined in the case-law and obviously in the mind of the legislator too. Wishing to put a stop to the case law of the Cour de Cassation, the French Senate had proposed an amendment to introduce a new Article 47-1 into the Civil Code. In essence, the text provided for a return to the previous case law of the Cour de Cassation: partial transcription of the biological parenthood link and adoption of the child by the other parent.
The French National Assembly rejected this amendment and instead amended Article 47 of the Civil Code. The text, which already provided that
‘All civil status records of French citizens and foreigners made in a foreign country and drawn up in the forms used in that country are considered as proof unless other records or documents held, external data, or elements drawn from the record itself establish, if necessary after all useful verifications, that this record is irregular, falsified, or that the facts declared therein do not correspond to reality’,
has been supplemented by the precision that
‘This (reality) is assessed in the light of French law.
The change seems minor at first glance, but it nevertheless calls for a whole series of observations.
The Purpose of the New Provision
The Senate amendment only concerned the transcription of birth certificates of children born abroad by surrogacy into French civil status registers. The new version of Article 47 of the Civil Code does not concern the transcription, but the evidentiary value of all foreign civil status records: birth certificates, as well as others (e.g. marriage, recognition, death, and certificates of stillborn babies). The text introduces a problematic confusion between evidentiary value and transcription of foreign civil status records. A foreign civil-status record does not need to be transcribed into French registers to have evidentiary value. It must only have been established following “the usual forms” of the foreign country (as laid down by the first sentence of Article 47 of the Civil Code). Moreover, it is impossible to require transcription in all cases because transcription of foreign records is only possible when the person(s) concerned by the record have French nationality.
The Lack of Legitimacy of the New Provision
The amendment proposed by the Senate was expressly aimed at surrogacy, which is a bioethical issue. However, Article 47 of the Civil Code relates to the evidentiary value of all foreign civil status records, whether they relate to French citizens or to persons of foreign nationality. What is thus the legitimacy of a new law relating to bioethics to reform this provision? For example, what link can exist between bioethics and a foreign marriage record?
In our opinion, the legal context of the reform of Article 47 is therefore inappropriate and even instrumentalised.
An Incoherent Provision?
There is still one condition for foreign documents to be evidentiary: they must have been drawn up following the local rules of form. And there are still three grounds for overturning this presumption of evidentiary value: irregularity, falsification, and inconsistency of the facts contained in the document to reality. There is no change for the first two grounds of challenge pursuant to the new version of Article 47. “Irregularity” means that the act respects the foreign local forms. The “absence of falsification” implies that there must be no documentary fraud (e.g. erasure, pasting, or fraud carried out with different computer software), but also more elaborate fraud, sometimes carried out with the complicity of local authorities (one can think of ‘true-false’ records drawn up deceptively and inserted into foreign registers by unscrupulous foreign civil registrars).
The third ground for challenging the evidentiary value – “the lack of conformity of the facts with reality” – has been completed by the strange precision that this reality must be “assessed in the light of French law”. Until now, this condition was interpreted in terms of accuracy or inaccuracy: was the person born in that town? Did the person die on that date? It is logical, facts are true or false. What sense can be given to the requirement that the facts must be conform with reality “assessed in the light of French law”?
Keeping in mind that the goal of the text was to put an end to the case law of the French Cour de Cassation, we can only observe that the legislator makes a confusion between what is a fact and what is not. Parenthood is not a fact: it may result from the effect of the law, from a recognition act, from a possession of status, or from a judicial decision. The new version of Article 47, therefore, invites reasoning in terms of equivalence between what French law allows and what it does not allow. It is no longer a question of factual reality but of legal reality.
An Incoherent System of Reception of Foreign civil status records?
Reasoning in terms of legal reality means that we must check if the element of personal status established or constituted abroad has an equivalent in French law. And that must be done for each element that may compose the status of a person: facts such as dates and place of birth, but also everything else, i.e. marriage and parenthood. And how far should this research of equivalence be pushed? Should we, for example, require that marriages celebrated abroad have a civil form because it is the only one that exists in France? Such research would not make sense because it would be the same as considering that a foreign record relating to a marriage celebrated only in the religious form has no evidentiary value in France, even though this marriage would be considered valid. Since 1955, French case law has considered that this question belongs to the conditions of form of marriage and is therefore governed by foreign law (see Cour de cassation, 22 June 1955, Caraslanis). This rule is now written into the Civil Code.
The formulation of the text causes confusion between the evidentiary value of the records and the recognition of the status of persons. The civil status record is used to prove that an event concerning personal status occurred abroad, but this does not mean that this personal status will produce effects in France. With the new version of Article 47 of the Civil Code, everything is mixed up: the element of personal status is checked to ensure that it corresponds to the definition given by French law to give evidentiary value to the foreign civil status record.
The New French Legal Reality of Female Parenthood
The law on bioethics has opened up medically assisted procreation to women couples and single women (Art. 342-10 of the Civil Code). The new Article 342-11 of the Civil Code provides that “At the time of the consent [by the notary] provided in Article 342-10, the couple of women jointly recognises the child”. For the woman who gives birth, parenthood is established in accordance with Article 311-25 which lays down that “‘Regarding the mother, parenthood is established by her designation in the child’s birth certificate”. For the other woman, it is established by the joint acknowledgement provided in the first paragraph of this Article. This is given by one of the two women or, where applicable, by the person responsible for declaring the birth to the civil registrar, who indicates this in the birth certificate. Regarding the woman of the couple who is not carrying the child, she will therefore be the legal mother of the child from the moment of its birth because of prenatal recognition.
So today, it is possible under French law to be the legal mother of a child without having given birth to that child and without the need to use adoption.
What Consequences for the Reception in France of Foreign Birth Certificates of Children Born Abroad by Surrogacy?
When the couple who had recourse to surrogacy abroad is heterosexual, most of the time, the indications written in the foreign birth certificate will only specify “mother:…” and “father:…”. It will not mention whether the woman has or has not given birth. It will only give the identity of the mother. Therefore, the foreign record will not contain any factual inaccuracies. To check if the indications are in conformity with the legal reality assessed in the light of French law, it is then necessary to verify whether French law allows the registration of a woman as a mother without having given birth and without having adopted the child. And this is now possible since the Bioethics Law of 2 August 2021…
The Cour de Cassation is therefore not required to change its case law in this situation. It can continue to transcribe these birth certificates in the French civil status registers. The situation is more problematic regarding men’s couples. In this case, there will be two fathers in the foreign birth certificate. To ensure that this record corresponds to the legal reality assessed under the light of French law, the Civil Code should contain a provision that allows the establishment of a double link of paternal parenthood from the child’s birth, without using adoption. And this provision does not exist. Therefore, it should no longer be possible to transcribe these foreign birth certificates in French civil status registers!
What Perception will the ECtHR have of such differential treatment?
The ECtHR does not systematically condemn States that do not allow the recognition or reconstruction of a parenthood link towards the non-biological parent who has had recourse to surrogacy abroad if the child has a family life with his or her parents. However, special circumstances are required and in its advisory opinion of 10 April 2019, the ECtHR stated that the parenthood link between the child and the intended mother must be established, including through adoption, but that there was no obligation for States to transcribe the child’s full birth certificate. This opinion was issued to surrogacy carried out by a different-sex couple but is perfectly transposable to same-sex couples.
If the French Cour de Cassation only allows the transcription of foreign birth certificates of children born from surrogacy when the parents are of different genders, there would certainly be discrimination between heterosexual and homosexual couples and even more between children who are all born abroad by surrogacy. It is difficult to see how France could not be condemned again by the ECtHR… And the recent Pancharevo Case of the CJEU (analysed here on the blog) can only add arguments in the direction of maintaining the current case law of the French Cour de Cassation.