Bonjour, everyone. I’m a big fan of the City of Lights, and normally, I’d be loath to say anything negative about France. Because, you know, croissants. And crêpes. And macarons. But unfortunately, France continues to struggle when it comes to recognizing children born via surrogacy.
This past week, the European Court of Human Rights ruled against France for the fifth straight time in this context, and in favor of a child (or in this case twins!) born via surrogacy. The ruling is here. I should note that the ruling is in French, and I confess that I had to use Google Translate to read it.
Non Merci to Surrogacy. As I’ve written previously, Europe more broadly has a mixed history with surrogacy issues. France, in particular, exemplifies this history. The country banned surrogacy over twenty-five years ago. In 1991, a French court held that surrogacy arrangements were considered invalid contracts. Three years later, France officially banned all gestational carrier contracts —altruistic or compensated—under statute, in the country’s Bioethics Act of 1994.
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But France was not content to merely prohibit surrogacy within its borders. Instead, its courts have repeatedly gone the extra step of refusing to recognize the parent-child relationship of children born to French parents in other countries where surrogacy is permitted. As a result, these children are left in legal limbo, often tragically without legal parents and without citizenship.
France Says “No,” But the European Court of Human Rights Says “Mais Oui.” In the late-2000s, two prominent French cases—involving the Mennesson and Lebassee families—wove their way through the courts. Both had similar facts. Each involved a married heterosexual French couple. And each involved a wife who suffered from infertility, and used the help of an American surrogate to give birth to their child.
When the overjoyed parents of each child returned to France, the government refused to “transcribe,” or otherwise recognize, the American birth certificates naming the intended parents as the child’s mother and father. Eventually, however, each couple took their case to the European Court of Human Rights, where they each prevailed. The ECHR held that the refusal to acknowledge the parent-child relationship was a violation of the European Convention on Human Rights. Specifically, the ECHR found a violation of Article 8, which guarantees respect for the private life of children. In this context, the children were entitled to have legally recognized parents regardless of how they were brought into the world.
Know Your Child’s Birth Date! In the most recent case, the Labourie family was living in Dubai, but traveled to the Ukraine for surrogate help having their twin babies. Like many couples who turn to surrogacy, the couple had first tried to complete their family through adoption, but were unsuccessful.
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Once the twins were born, Ms. Labourie went to register her children with the French Embassy. There, she was asked the birth date or her children. In what can only be described as an unfortunate move, she responded by asking for the birth certificates back, as she had forgotten the children’s birth dates. Come on!
So pro-tip for all of you intended parents: know the birth dates of your surrogate-born children when trying to register them with the French authorities! Of course, it probably wouldn’t have made a difference in this case, but it definitely tipped off the authorities that something was out of the ordinary.
Still, the ECHR’s Labourie ruling is certainly a victory for the Labourie children and their parents. But it’s also a victory for French intended parents turning to surrogacy. Nevertheless, I remain skeptical about France’s domestic courts, given that this was the fifth(!) time the ECHR ruled against France in a case with a similar surrogacy fact pattern.
So it may be unlikely that French courts will be change their tune anytime soon. And for future French intended parents living in France, in addition to the already pricey process of surrogacy, you may also want to budget for the long and expensive litigation costs on the way to the ECHR.
Until next week my friends, au revoir.
Ellen 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 [email protected].