Surrogate motherhood : the “exequatur” procedure for establishing a filiation link
Through two decrees issued in October, the French court of appeals has specified the criteria enabling the transposition of filiation established abroad within a GPA (surrogate motherhood procedure), when the interested parties use the so-called “exequatur” procedure.
The law in France governing surrogate motherhood
The practice of surrogate motherhood remains prohibited in France. A lengthy series of legal decisions has confirmed the prohibition. The law dated 29thJuly 1994 explained the prohibition and introduced article 16-7 into the civil code which provides that “any convention concerning the procreation or gestation on behalf of another, is void.” This statement followed two decrees issued by the court of appeals. In 1989, the latter stated the invalidity of surrogate motherhood conventions, recalling that “only those things which are commercialised can be subject to conventions.”
The decree recalled that “such conventions contravene the public order principle of the unavailability of the state of persons inasmuch as they intend to bring a child into the world, whose state does not correspond to its true filiation through a renunciation and a transfer, which are also prohibited, of the recognised legal rights of the mother to be ; that the activity by the association, which tends deliberately to create a renouncement situation, constitutes an abuse of the institution of adoption from its true aim which is, in principle, to provide a family for a child which is so deprived“.
In another case dating back to 1991, the court cancelled the adoption of a child born to a surrogate mother because “the adoption was merely the final stage of an overall process intended to enable a couple to welcome to their home a child, conceived in execution of a contract causing the child to be abandoned at birth by its mother, and that, in contravention of the principles of the unavailability of the human body and the state of persons, the process constituted an abuse of the institution of adoption“.
However, several decrees by the European Court of Human Rights (ECHR) have an influence on the question of the recognition of filiation established abroad as a result of surrogate motherhood. Through two decrees issued in June 2014, the ECHR asserted that the State was going beyond its authority over its margin of appreciation by refusing to recognise the filiation link, previously established abroad.
The government of the time did not appeal against the decision. Drawing its conclusions from this jurisprudence at the European level, the court of appeals published a statement in 2018 indicating that henceforth “The existence of a surrogate motherhood convention is not in itself an obstacle to the transcription of a birth certificate issued abroad insofar as it is neither unlawful nor forged and that the facts declared correspond to the biological reality.”
In 2019, by a decree issued on 10th October, the ECHR specified that article 8 – the respect for privacy – requires that internal law provides a possibility for the recognition of a filiation link between a child born through surrogate motherhood abroad and the intended mother, designated in the birth certificate legally established abroad as being the “legal mother”. Acting on this decision, the court of appeals accepted the re-transcription into French civil registration of a foreign birth certificate, indicating as “legal parents” the “intended parents”.
The latest bioethics law adopted in 2021 confirmed the prohibition of surrogate motherhood in France. An article (article 47) has been added to the civil code, specifying that the recognition of filiation established abroad is “considered in the light of French law”. However, French law still prohibits the practice of surrogate motherhood. In concrete terms, the transcription of a foreign birth certificate for a child born through surrogate motherhood is thus limited to the sole biological parent, the other partner, the so-called “intended parent” must proceed with the establishment of a filiation link through an adoption procedure.
What do the latest decrees by the court of appeals say?
In order to avoid having to resort to an adoption procedure for the “intended parent” with no biological link to the child, those resorting to surrogate motherhood make use of a so-called exequatur procedure. This legal procedure may lead France to recognise and execute a decision by a foreign court, once a French judge has undertaken a certain number of checks.
Two cases have been examined by the Court
In the first case, two men living in France travelled to Canada for a surrogate motherhood procedure. Two resulting children were born in Ontario in 2014. A decision by the Canadian courts declared that the two men were the legal fathers of the children. The latter appealed to the French courts for the decision by the Canadian courts to be recognised in France and therefore that the children could have a French civil birth certificate. The court of appeals rejected the exequatur: considering that the Canadian judgement was insufficiently motivated and that it was therefore “contrary to French international public order”.
The Court of Cassation agreed with the court of appeals and rejected the claim by the two men.
In its judgement, it recalled that the motivation on which to base the decision by the foreign court must enable checking of:
1. The quality of the parties mentioned in the judgement or the appended documents concerning the parental project;
2. The consent of the parties to the surrogate motherhood convention;
3. The consent of the said parties, and in particular of the surrogate mother, to the effects that the surrogate motherhood convention will have on the filiation of the child.
The court recalled that “In view of the fact that surrogate motherhood is prohibited by French law and that such a procreative practice is a source of risk (e.g. vulnerability of the surrogate mother) this decision by the Court of Cassation is intended to ensure that surrogate motherhood procedures conducted abroad provide adequate guarantees”.
In a second case, two men living in France travelled to California for a surrogate motherhood procedure. A decision by the Californian courts declared them as the legal parents of the child to be. The two men then applied for exequatur. They applied to the French courts for the Californian court decision to be recognised in France and that the filiation established under Californian law should produce the effects of a plenary adoption.
The foreign judgement was recognised in France, then the court of appeals accepted to recognise that the filiation established abroad could be considered as an adoption.
The public prosecutor launched an appeal against the recognition of the adoption.
The Court of Cassation replied that “in this case, the foreign judgement did not establish the filiation on the basis of an adoption procedure, but on the basis of a specific parental project procedure, which follows a different logic to that governing adoption, taking into account the parental project involving resorting to a surrogate mother. It cannot therefore produce the same effects as a plenary adoption”.
This judgement “does not question the exequatur itself from the foreign court, which can produce its effects in France and enable the child to obtain a birth certificate”.
In practice, this means that the filiation link is not recognised under the adoption procedure, because surrogate motherhood is not an adoption. The Court of Cassation thus refused to equate the two procedures. The filiation link is nevertheless recognised on the strength of the foreign judgement accepted by the French courts. Therefore, providing the foreign judgement includes the statements which the French judge considers necessary, the exequatur procedure establishes the filiation requested by the surrogate motherhood interested parties.
The Court of Cassation therefore applies a framework of additional conditions for the recognition of the filiation resulting from surrogate motherhood, through this exequatur procedure. This represents a form of facilitation and acceptance of the practice of surrogate motherhood, at a time when this international market is in full expansion.
A basic contradiction remains nevertheless. The transpositions in France of filiation links obtained following surrogate motherhood procedures abroad are made in the name of the best interests of the child and its right to privacy, according to ECHR jurisprudence. But surely the best interests of the child should surely be to never be the subject of a contract for its birth? According to Alliance VITA, surrogate motherhood remains contrary to the best interests of the child since it organises its being abandoned by contract even before its conception.
Additionally, the fiction of filiation established by a judgement cannot mask the unquestionable realities: a woman has provided an oocyte and another has carried the child for 9 months.
An international prohibition of surrogate motherhood is the only ethical way to avoid a child being exploited through gestation conventions.
