Surrogacy and parental rights in France
Dernière mise à jour : 28 sept.
In France it is not legal to conceive a child via a surrogate. However, many couples turn to surrogacy aboard, especially in certain US states.
What are parental rights in France in the context of surrogacy ?
This question is treated on a case sensitive basis by French courts. Generally speaking the answer depends on what is indicated (or can potentially be indicated following a court order on parental rights) in the child's birth certificate.
Under the most recent French case law: courts refuse to recognise and enforce foreign court orders and/or birth certificates on parental rights that do not correspond to the « biological truth ».
For instance, the civil court of Anger in a judgment dated 17 February 2020 (n°17/01528) refused to recognise a US parental rights order following a surrogacy in California because the birth certificate of the child that resulted from the California State court order did not correspond to the « biological truth ». The court order indicated that the surrogate who gave birth to the child was not the "mother" but that the father's husband should be recorded as second parent. Under the new California birth certificate the child therefor had 2 fathers.
The legal basis of the "biological truth" arguments is article 47 of the French Civil code (as amended by a recent law of 2 August 2021) that provides:
"Acts on civil status of French nationals or foreigners made in a foreign country and drawn up in the forms customary in that country are deemed authentic, unless [...] the facts declared therein do not correspond to reality. This is assessed in the light of French law."
The French judge must assess, on a case by case basis, if the facts in the child's birth certificate correspond to the French legal truth.
The parental rights of the biological parent indicated in the birth certificate are thus recognized in France as they are considered to correspond to "reality", regarless of the surrogacy agreement (Supreme Court, 3 July 2015 n°15-50/002)
However the parental rights of the second parent are not recongized at the moment.
For the time being, the second parent prefers opting for a plenary adoption in France of the child born via surrogate.
The French Supreme Court has authorized adoption of a child born via surrogate (Supreme Court, 5 July 2017, n°16-16.455, Supreme Court, 4 November 2020, n°19-50.042). However, if the foreign birth certificate mentions the surrogate's name, only a simple adoption will be possible.
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Caterina Giudiceandrea
Lawyer at the Paris Bar