In two judgments on September 28, 2015, the Rennes Court of Appeal refused to acknowledge the validity of birth certificates drafted abroad in 2010 after gestational surrogacy. The court thus confirmed the nullity of the birth certificate for a girl born in India as well as refusing to transcribe the birth certificated of twins born in the United States. However the motive cited is no longer fraud against the law related to the gestational surrogacy convention, like hitherto in past cases, but because the birth certificates do not state the truth: the “intended” mother, partner of the “biological father” was labelled as the mother of the child, and not the surrogate mother who gave birth to the infant.
In the case of the child born in India, for example, by the judgment pronounced on May 22, 2014, the High Court in Nantes nullified the disputed birth certificate transcriptions, on the grounds of fraud according to the law of public order following the agreement for Gestational Surrogacy’s restrictions of articles 16-7 and 16-9 of the civil code and thus declared it absolutely null and void. The parents intend to appeal the decision according to the judgments of the European Court of Human Rights (ECHR) on June 26, 2014, which they interpret as transgressing the right for transcription of French civil acts for birth certificates established abroad.
The Rennes Court of Appeal first considered that the theory of fraud could no longer be considered admissible and the child’s birth conditions – following the gestational surrogacy agreement – could no longer be invoked to refuse this. This turnaround was based on the ECHR decision of June 26, 2014 and in the application pronounced by the French Court of Appeals in two rulings on July 3, 2015. In these judgments, the French High Court abdicated previous case-law rulings which considered the acts void, following the gestational surrogacy agreement, and thus authorized the transcription of foreign births in certain cases: which applied to both cases, and which designate the parents, on one side a French man having furnished gametes for the child’s conception, and in the other a Russian surrogate mother who gave birth to the child.
The Court in Rennes then confirmed the nullity previously pronounced by the High Court; and substituted the motive since the used argument is that “the birth certificates do not reflect the truth”. The act that was established designated the French couple as parents. However, this act does not reflect the reality since it mentions the companion of the “biological father” as “mother” whereas she was not the one who bore the child. Therefore the exceptions in Article 47 of the Civil Code can be applied in the measure that the declared facts on the birth certificate “do not correspond to the truth”.
The judges do conclude by refusing to recognize this kinship established by pure convenience, which was intended by using a substitute mother outside of France. But their reasoning confirms that a new jurisprudence has now appeared whereby the gestational surrogacy agreement, previously considered as void by French law, is not an obstacle to transcribing the birth of a child born abroad from the conditions of such an agreement. It now suffices that the birth certificate is neither inconsistent, nor falsified and the facts must correspond to the truth. The theory of fraud, which was proffered by the public minister in both cases, seems henceforth to be systematically put aside.
But the future of such decisions remains uncertain and leaves various questions hanging. For Jurists for Children “the hypocrisy is flagrant, since this irresponsible jurisprudence has implications on only half the birth certificates: transcribed on the register when the designated woman is the surrogate mother, non-transcribed when the designated woman is the intended mother. (…) These decisions reveal the impasse to which the Court of Cassation has led French jurisprudence. Legal action, to penalize recourse to gestational surrogacy, including births abroad, and to finally oppose this practice, has never been more urgent.”
Last October 15, on the occasion of the publication of a decree enlarging the possibility of donating ovocytes, the health Minister, Marisol Touraine, recalled that ovocyte donation does not permit “in any way gestational surrogacy” for which she remains opposed as well as the government.
It thus appears urgent that public instances address the serious contradictions between their words and their acts, and that the government decide to get involved concretely, as the Prime Minister declared, to forbid gestational Surrogacy on an international level. In conjunction with other international non-profit associations, Alliance VITA supports the call for a universal prohibition of gestational surrogacy www.nomaternitytraffic.eu.
