Ukrainian Surrogate Mothers Giving Birth in France
An unintended consequence of the war in Ukraine is that a number of Ukrainian surrogate mothers have travelled to other countries to give birth.
The French press has reported that surrogate mothers who had entered into agreements with French residents were repatriated to France to give birth there.
The problem is that surrogacy is prohibited in France. This is why the French Court of Cassation initially ruled that the entire enterprise aimed at evading French law, and that the parenthood resulting from the surrogacy should thus be denied recognition in France. But, as readers will know, the ECtHR ruled that this result violates the child’s right to respect for private life within the meaning of Article 8 of the European Convention on Human Rights.
Does the fact that the birth takes place in France as opposed to a country where surrogacy is legal change anything?
Establishing Parenthood
The first problem arising in this case scenario is that French law (obviously) does not establish the parenthood of the intended mother and cancel the parenthood of the surrogate mother. Quite to the contrary, if a Ukrainian woman gives birth in France, she is automatically the mother.
As a consequence, the intended parents put in place the following scheme:
- The intended (and typically biological) father recognised the child before birth, in accordance with French law and before a French authority.
- The surrogate mother gave birth after declaring that she does not want to be on record and wants to remain anonymous. This is allowed under French law, and should normally lead to the child being adopted by one of the many couples waiting for this. But here, the father is known.
- The partner of the father, typically the intended mother, files an application to adopt the child.
Is This Still a Foreign Surrogacy?
An interesting question is whether one could still claim that the surrogacy was validly constituted abroad.
Two major differences between this case scenario and the more traditional one is that the birth occurred in a country were surrogacy is illegal, and that no foreign document establishes the parenthood of the intended mother. It is therefore difficult to say that the issue is one of ‘recognition’ of a foreign situation, or of a foreign official act.
But even if this is not so, which law should a French court apply to determine the validity of the surrogacy? To my knowledge, this is an issue of first impression, but one would tend to think that the choice of law rule applicable to parenthood should be applied. This would lead, in France, to the application of the national law of the mother. Although the relevant provision does not define the concept of mother, it seems clear that the French lawmaker had in mind the biological mother. Thus, Ukrainian law might apply, and the surrogacy might be foreign irrespective of where the birth took place.
The next steps of the reasoning would then be whether the result would comport with French public policy, and whether you would need to determine separately the applicable law to the parenthood of the intended parent.
Does it Matter?
Maybe not, at least from the perspective of PIL.
The European Court of Human Rights has repeatedly insisted that the fundamental right of the children demand some form of acceptance of surrogacy. And it does not seem that the court has limited the scope of this right to cases where the surrogacy was validly constituted abroad.
Why should it, after all? The problem of the children is not fundamentally different if the parents acted illegally.
What about Criminal Law?
The issue might be different from the perspective of criminal law. It is easier to argue that a surrogacy eventually resulting in a birth in France falls within the territorial scope of French criminal law than a surrogacy organised from France by the intended parents.
The French press has reported that a French organisation has informed prosecutors in five different cities, and that one prosecutor has initiated criminal investigations in one of them. There are a number of French criminal offences which might apply to the process of surrogacy: “provocation à l’abandon d’enfant”, “entremise entre un couple et une personne acceptant de porter l’enfant”, “substitution volontaire, simulation ou dissimulation ayant entraîné une atteinte à l’état civil d’un enfant”.
The prosecutor, however, closed the case in October 2023. Remarkably, he did so on the ground that the surrogacy was “carried out” in a country where it is legal, and that the constitutive elements of the offences had thus taken place abroad. The French criminal code provides that it is enough that one constitutive element of the offence took place in France for French criminal law to apply. It is hard to see how the birth could not be one of the constitutive elements of all of these offences.
Is the case law of the ECtHR relevant in this context? Probably not: the criminal consequences of the actions of the parents will be personal, and will not directly affect the children.
Should French Social Security Pay for the Costs of the Delivery?
Two hospitals where Ukrainian surrogate mothers gave birth have sent an invoice to the intended parents for the costs of the delivery.
French social security covers the medical costs of birth for women entitled to such benefit. The French couples who organised Ukrainian surrogacies would likely be entitled to see most of the costs of their delivery being paid by social security, but not women covered by a foreign social security (although there might be rules for covering emergency birth on French territory: comments from specialists of international social security law welcome).
Several French intended parents have refused to pay the invoice, and have announced that they will challenge the decision of the hospitals to issue the invoices in administrative courts. Will French courts accept that evasion of French law should be funded by French taxpayers?
