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.
In the decree published by the Official Journal this past Thursday, October 15, 2015, it was announced that the donation of ovocytes and spermatozoids will be enlarged to include people without children. Article 29 of the Bioethical Law of July 7, 2011 provides for this donation, which was announced by the minister last May, but until now the conditions for its practice had not yet been implemented.
Henceforth, even without having had a child, a woman between the ages of 18 to 37 can donate her ovocytes and a man between the ages of 18 to 45 can donate his spermatozoids. The measure announced by the minister, aims to increase the number of ovocyte donations, but also lower their average age which varies today at approximately 32 years of age, according to Dr Hélène Letur, vice-president of the Study Group for Ovocyte Donation.
Until now reserved for adults in good health, who had already reproduced, this opening of donations to people without children hopes to respond to the shortage facing infertile couples. “This year, we need 1,200 donors, 900 women, and 300 men, but we only have 450 ovocytes and 260 spermatozoids”, the Health Minister, Marisol Touraine specified, in an interview with the daily newspaper, Ouest France.
For volunteer donors, this decree also allows for self-preservation, gratuitously deep-freezing their gametes, so the donors themselves may later benefit from a part of the gametes donated, but only if they become infertile. Is this a first step for going increasingly further? Gynecologist, Joëlle Belaisch-Allart is arguing that all French women, donors or not, should have the right to deep-freeze their ovocytes and that their donation be renumerated. As Vice-President of the French National College of Gynecologists and Obstetricians, she thinks that this decree could give certain women the desire to donate their ovocytes in the hope of recuperating them for themselves, because, as she explains “ for the moment there are no other means to preserve one’s own ovocytes in France. If we authorize women to conserve their own eggs for their future fertility without medical reasons, in five years we could greatly reduce the waiting-list of couples requesting egg donations”. For the National College of Gynecologists, “all women should be able to have access ‘at their convenience’ and without medical indications – to having their ovocytes frozen to preserve their future fertility.”
The Health Minister recalled that « To avoid situations where acts might not be voluntary or sufficiently thought-out, a psychological consultation would be “required” prior to donation for those who are not parents, to verify that the candidate donor had not been subjected to pressure”. She underlines, among other things, that “donating ovocytes, when one has not had a child, does not alter one’s own fertility.” However, the decree specifies that “the ovocyte donor be informed of the conditions for ovarian stimulation and ovarian tissue removal as well as the risks and constraints related to such techniques.” In fact, to donate ovocytes, a woman is subjected to examinations, an ovarian stimulation, and then a surgical procedure to remove the ovocytes from her ovaries. The risks related to the procedures are not inexistent.
Furthermore, pregnancies with donor ovocytes expose women to increased risks of pre-eclampsia, a danger which was underlined by Dr Harvey last September 25, during the second day of the infertility conference.
Donating gametes anonymously without remuneration will remain obligatory, with no limit specified for the length of preservation.
For Alliance VITA, these changes demonstrate growing pressure for donating gametes to the detriment of genuine prevention of infertility, notably concerning delaying the age of maternity. The offers from Google and Apple to finance ovocyte deep-freezing for their employees says a great deal about this growing tendency and which could be implemented if we continue along this line. The donation of ovocytes is particularly wearisome for women: where young women are encouraged to donate ovocytes to older women, at the risk of their putting their own future fertility in peril, is a certain form of exploitation that French society should question itself about.
Finally, this type of donation cannot be compared to other donations, such as giving blood, because it implies that the donor will potentially become the biological father or mother of one or several children. The donation of gametes is not an innocuous method of reproduction since the child conceived, is deliberately deprived of a part of his biological origins.
The appeal trial of the former emergency doctor, Nicolas Bonnemaison, accused of having put seven people to death between March 2010 and July 2011 at the Bayonne hospital, and who was initially acquitted in Pau last year, opened this past October 12, 2015 in Angers at the Criminal Court in the Maine-et-Loire department.
Informing neither the caretakers nor the families, Nicolas Bonnemaison proceeded to give lethal injections to elderly people without their permission. He was acquitted by the Court of Appeals in Pau for ‘all counts’ in June 2014, whereas the lawyer had requested 5 years of prison. This acquittal constituted a revealing and frightening verdict. « Taking the facts of this case into account, the attorney general for the court of appeals deemed that it was necessary to appeal the decision” of the Criminal Court, and therefore the Attorney General filed an appeal on July 2, 2014.
None of the families of the victims have pressed charges, but two of them have launched a civil suit, hoping to obtain Nicolas Bonnemaison’s conviction.
In April 2014, the Order of Physicians adopted the decision to remove the former Emergency Physician’s license to practice, and the State Council followed suit, confirming their sanction.
The highest administrative court followed the conclusion of the public rapporteur who recalled during the public audience of December 19, 2014: “under no circumstances, no matter the difficulty of his task, does a doctor have the right to kill.”
It is noteworthy that an appeal against this ruling is pending at the European Court of the Human Rights (ECHR).
This process will be ongoing until October 24. Numerous statements are expected, and more than 60 witnesses are scheduled to appear. The witnesses include the victims’ families, the medical personnel, and also Jean Léonetti and previous ministers, Bernard Kouchner (Health) and Michèle Delaunay (Elderly People).
Whatever the motives for the appeal, the crimes for which Nicolas Bonnemaison was acquitted in Pau, and for which he is now being tried, make him liable for the penalty of life imprisonment.
On October 9, 2015, the administrative court in Châlons-en-Champagne denied the request to cease treatment for Vincent Lambert as his nephew, Francois Lambert had demanded.
Thus, the judges followed the recommendation of the public rapporteur and felt that the doctors at the Reims hospital were within their right, in virtue of their professional independence, to refuse to put an end to the life of Vincent Lambert.
The nephew’s request that the Reims Hospital should enforce the January 11, 2014 decision made by Dr. Eric Kariger to suspend feeding and hydration of the young man in a minimally conscious state following a serious car accident, was consequently dismissed.
For the judges, the doctor, who had refused to decide cutting off food and hydration on July 23, whereas he had initiated new proceedings aiming at a possible decision to halt treatment, acted “in accordance with his professional and moral responsibilities”. According to the administrative court, the decision to halt treatment can only be made “ individually by the doctor in charge of the patient”, with the hospital not being able to oppose this decision. The judges equally esteemed that a previous medical decision could not be imposed to a new doctor.
It is noteworthy that several other legal procedures are pending.
On the one hand, the prosecutor in Reims solicited the guardianship judge to name someone as guardian. It is expected that the guardianship judge, as an independent and impartial magistrate, will name an administrator outside of the family circle within the coming weeks. The scope of his assignment will also be described, especially his ability to demand or not Vincent Lambert’s transfer to another establishment.
On the other hand, Vincent’s’ parents had solicited legal recourse on two points:
On July 16, 2015, they filed a complaint against the Reims hospital and the doctors for “attempted assassination on a vulnerable person” and against Rachel Lambert, Vincent’s ex-wife, for “forgery and falsification of records”.
On September 10, they filed a subpoena against the hospital, with the District Court in Reims, requesting the transfer of their son to another establishment more adapted to his condition. They consider that there is “a grave neglect in fulfilling the obligations of medical care towards Vincent” especially because of the absence of physical therapy since the end of 2012.
At several intervals, they requested that the Reims hospital transfer their son “to one of the six establishments who had proposed to receive him”, a request that has been refused until now. Indeed, a patient can be legally transferred to another health establishment, on the condition that he himself has expressed his agreement for the transfer, which Vincent is unable to do in his present condition.
The naming of a guardian might get things moving again. However, it isn’t certain that the future guardian might be able, or willing to do so. This is why Vincent’s parents want to oblige the hospital to transfer their son quickly, to a place which would be more adapted for patients with brain lesions.
Tugdual Derville, Alliance VITA’s General Delegate and spokesperson for the movement “Relieve Suffering Without Killing”, was interviewed on October 5, 2015 by the Parliamentary Channel to comment on the Claeys-Leonetti bill which was examined in a second reading at the National Assembly on October 5-6.
