Family Law, Gay, Health Care / Medicine, Kids

French Gay Dads Win A Surrogacy Victory

More individuals and couples around the world are being given the opportunity to have the family they dreamed of.

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Not the plaintiffs in this case — Getty Images has surprisingly good stock photos for ‘gay French dads.’

As you know by reading this column, Europe has a surrogacy problem. Many European countries have either completely banned surrogacy, or at least severely limited its legality. France is among those European countries that have outlawed surrogacy within its borders. But despite the ban, high demand by French citizens — including gay couples who want a biologically-linked child — has led to many French citizens conceiving children abroad via surrogacy, and in some cases, turning to desperate measures.

Once these new parents return to France, they have to face (on top of not getting any sleep!) the cold reality of a government struggling with the legalities of parental recognition and citizenship of the resulting bébés.

A Non-Bio Dad Can Be A Parent. The Hard Way. Last week, the Court of Cassation — which is apparently what they call France’s highest court of appeals — ruled on a surrogacy dispute. (Here’s the French manuscript for my fluent followers.) In the case, four couples with children born via surrogacy outside of France asked the court to require the government to recognize their (and especially the non-biological parent’s) parental rights to their child.

At Least It’s Not Three Years Ago. Fortunately, the couples at least had one parent with recognized rights to the child. Three years ago, France was refusing to recognize any French parental rights or French citizenship for a child born elsewhere via surrogacy. The European Court of Human Rights chastised the French government, finding that such a stance was a violation of human rights — specifically for the parentless, and possibly country-less, child. That 2014 ECHR ruling allowed a genetically-linked father to a surrogate-born child to be recognized as the legal parent, and the child be given French citizenship.

Still, that left a non-bio partner, and even genetic mother, out in the cold. And even until last week, a non-bio dad, regardless of his marriage to a biological father and an intent to parent, would be denied parental recognition of the child. The parents argued that since they were both recognized as the child’s parents on the American (or another jurisdiction’s) birth certificate, the French government should similarly recognize both dads as parents.

In great news, the court did not rule against non-bio dad becoming a parent. The government did not, however, grant the plaintiffs’ full request for relief. That request would have basically involved just having the French government transcribe the American birth certificate, and issuing appropriate French documents. No way was France just going to copy America, though. Instead, the court agreed to a middle route, and ruled that the non-bio partner could adopt the surrogate-born child. Fine, I guess. The result is a longer legal process for the parents, but at least there’s finally the ability to secure parental rights of both parents.

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Lots of Good News. The court’s ruling was not the only good news bestowed on gay French hopeful parents this past week. While campaigning, President Emmanuel Macron took the position that single women and same-sex female couples should be eligible to use assisted reproductive technology services to conceive. Currently, the country allows those services to be available only for heterosexual couples. (Not exactly consistent with the ideals of Liberty, Equality, and Fraternity!)

Unfortunately, Macron hedged his position by saying that he would wait for the National Consultative Ethics Committee to issue a recommendation on the matter before acting. Ugh, committees! But thankfully, last week, after considering the issue for over three years, the Committee finally issued its opinion. It concluded that, indeed, singles and same-sex couples should be permitted to use assisted reproductive technology services. Vive la France!

In conclusion, more individuals and couples around the world are being given the opportunity to have the family they dreamed of, regardless of its form. It’s nice to see another country (especially one as beloved as France) come around. Now if only France would allow surrogacy altogether, then hopeful French parents wouldn’t have to turn to the United States. Not that we are complaining. Pass another pain au chocolat, s’il vous plaît.

Earlier: Know Your Child’s Birth Date — Especially If You’re French

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.

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