French Supreme Court on Surrogacy

On July 5, 2017, the French Supreme Court handed down several judgments concerning surrogacy (GPA). As French law prohibits GPA (articles 16-7 and 16-9 of the Civil Code), the Court was led to clarify whether a couple could obtain the transcription to the French civil registry of the birth certificate established abroad when the woman who is designated as the mother has in fact not given birth to the child. The Court replied in the negative to the question, invoking in particular Article 47 of the Civil Code. Under the latter, it is not permissible to transcribe to the civil registry foreign acts whose enunciations are not in conformity with reality. In other words, for the Court, it is impossible to transcribe an act referring to a mother who is not the woman who gave birth to the child. On the other hand, the designation of the Father must be transcribed except in case of falsification of the foreign act or disputed paternity. The Court concludes on this point that the partial transcription does not involve a disproportionate infringement of the right to respect for the child’s private and family life as guaranteed by Article 8 of the ECHR in so far as the French authorities allow the child to live in/as a family, that a certificate of French nationality is issued and that there is a possibility of adoption by the spouse or husband of the father. The Court recalls that the prohibition of GPA by French law pursues a legitimate aim of protecting children and surrogate mothers, as recognized by the ECtHR in the judgments of the ECtHR Mennesson and Labassée of 26 June 2014. In a second case, the Court clarified that a GPA carried out abroad does not in itself prevent the (simple) adoption of the child by the father’s husband when the legal requirements for adoption are met and when the adoption is in the best interests of the child. As a justification, the Court here refers in particular to the law of 17 May 2013 opening up marriage to same-sex couples in France.

For more information, see: The Cases of July 5 2017  

Summary of the ECTHR Cases Arrêt Mennesson c/ France & Arrêt Labassée c/ France