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Why has France banned surrogate motherhood?

Shortly after it emerged in the 1980s, surrogate motherhood was dealt a severe blow in France by a decision of the Cour de Cassation, its highest civil court. In 1991, it ruled that an agreement entered into by a woman to conceive, bear a child, and relinquish it at birth, albeit for altruistic reasons, was contrary to the public policy principle of unavailability of both the human body and civil status. This prohibition was confirmed in the Bioethics Act of 1994 and enshrined in the Civil Code as a regulation which is “a matter of public policy,” i.e. belonging to a category of mandatory rules created by the state to protect fundamental values of society and from which citizens have no freedom to derogate.

In the last few years the issue of legalizing gestational surrogacy has resurfaced for many reasons. First of all, there is growing demand for autonomy, particularly with regards to individual life choices. There is also a persistent specific demand from women whose infertility is related to congenital malformation, cancer surgery, postpartum hemorrhage, or exposure to Distilbene. Last but not least, people can turn to international surrogacy in the United States or in countries such as Ukraine and India where specialized clinics operate for foreigners. But when they return to France with children conceived in this way, substantiating ties of filiation is not straightforward.

Today, the prohibition of surrogate motherhood is supported by a majority of French citizens. It is justified by ethical concerns regarding the child, the surrogate mother, and society as a whole.

Recent decisions in French courts illustrate the complexity of enforcing this prohibition in a globalized world. They deny both adoption and recognition of children born abroad to surrogate mothers. The rule is to recognize what is legally done in other countries, except if it appears to be against fundamental principles. For instance, a divorce obtained in another country is considered valid except if it is a result of repudiation. Following this pattern, the Cour de Cassation decided that it was against one of these principles to register a child under the name of a woman who did not give birth to him; in the Mennesson case in 2008, it ruled that the transcript of the birth certificate of a child born to a surrogate mother in California was unlawful even though the child had obtained his birth certificate there and was a US citizen.

Then came the case of a same-sex couple who had travelled to India to get a child through surrogacy. The “mother” had an Indian name and the biological father had issued a declaration of paternity; the court again refused to register the birth certificate, basing its decision on French citizens being unable to go abroad to circumvent French surrogacy laws.

Of course, the Cour de Cassation took into consideration the best interests of those children. Even though the child’s filiation is not recognized in France, as he had a foreign birth certificate, he was not prevented from living in France with the couple and had the same rights as other foreign children regarding school and healthcare. Had the judges accepted de facto a surrogacy performed abroad, it would have been inconsistent with its strict prohibition in France. Moreover, were the child’s best interests to be considered paramount, child abduction and trading could well be justified in some extreme circumstances, making other international conventions, such as The Hague Convention on Adoption, inapplicable and obsolete.

Today, the prohibition of surrogate motherhood is supported by a majority of French citizens. It is justified by ethical concerns regarding the child, the surrogate mother, and society as a whole.

…it is highly plausible that some surrogates are acting entirely of their own free will, but it is still wrong for society to accept a form of alienation, however voluntary.

Firstly, children may be psychologically at risk in such transactions. Ignoring or denying the effects of pregnancy and the mother-child relationship on the child’s future could well be damaging for him or her as well as for the intended parents; and children could become commodities traded as merchandise between surrogate mothers and infertile couples.

Secondly, even aside from the physical risks of pregnancy, the gestational mother is exposed to two dangers: becoming attached to the child and suffering from the separation after birth, since she knows that, for her, childbirth will mean an end rather than a beginning. France is also concerned about the fact that there is an inherent social division in this practice: surrogate mothers are usually from lower economic backgrounds and can be economically exploited in this transaction.

Thirdly, surrogacy could threaten the symbolic image of women (“Marianne” is the female symbol of the Republic) and the principle of human dignity that enjoys constitutional recognition. In France, dignity is often regarded as an obligation that individuals owe themselves to remain worthy of their human condition. Individuals are free to decide what constitutes their own dignity provided the dignity of others is not harmed.

While it is highly plausible that some surrogates are acting entirely of their own free will, it is still wrong for society to accept a form of alienation, however voluntary.

Still, in the wake of a recent ruling of the ECHR in the Mennesson case, read on 26 September 2014, France may well be poised to recognize international surrogacy. The Court decided that although France had not violated the right of the commissioning parents and of the children to respect for family life, a violation of the child’s right to respect for their private life (article 8) had occurred. France had gone beyond its margin of appreciation by refusing to recognize under French law children who had French biological fathers: it is extremely interesting that the decision of the Strasbourg court is based on “the importance of biological parentage as a component of each individual’s identity”. This means that France is not forced to automatically recognize any kind of international surrogacy.

The government did not announce new measures to comply with this decision. It is politically easier to wait until another judicial complaint is made and see how the Cour de Cassation reflects the new direction set by the European Court.

Indeed, legal choices are extremely difficult to make: an ideal solution would be to enforce the intention of the French legislator to ban surrogacy while ensuring children do not suffer from discrimination on account of their parents infringing the law. Unfortunately, one struggles to see how to recognize some situations legally established abroad without paving the way for sordid human trading, ultimately leading to so-called “ethical surrogacies” in our country.

Image Credit: “Palais de Justice, Paris, 26 Sept. 2009.” Photo by Phillip Capper. CC by 2.0 via Flickr.

Recent Comments

  1. […] France and rapporteur for the National Consultative Ethics Committee for Health and Life Sciences, contributed her perspective on the ethical considerations of surrogacy. Her piece, which posits national court case as global […]

  2. Alloise

    I cannot understand how people can judge on surrogacy. I guess you haven’t problems with fertility. If it is about parenthood, you will do everything possible. Do you know what maternal instinct is? But the same time you haven’t your child? For a lot of women surrogacy is the only option. I have my twins thanks to surrogacy program. You can be sure If I hadn’t had them, I would have died. You can say everything you wish, I even heard that tube babies don’t have soul. This is only because you didn’t face such problem when you are ready to lose everything in your life for possibility to have a child. I can agree that it is very important to be serious making a choice on the clinic. Before signing the contract I checked everything. It is very important the sanitation state of the country and clinic. You also have to check their attitude to the health examination of the mothers and donors, their success rate. And you can be sure that I have never regretted that I have my twins, they are beautiful children. And I am very grateful for them!!!

  3. Erin Laird

    Nowadays surrogacy is widely popular. So it seems rather strange to me that is has so many opponents. All over the globe there are many women who work as surrogate mothers. For some of them it`s a chance to earn money for their poor families. This practice is popular in backward countries. For many women it`s a chance to help somebody to change his life. They give them the opportunity to become happy, give a sense of life. Unfortunately in many countries surrogacy is forbidden. Now in Europe the leader in this field is Ukrainian clinic Biotexcom. It is so popular because in Ukraine many healthy women who are ready to become donors or to bear a child for somebody. And I can say for sure that these people who help us infertile women and men to have healthy children must be blessed but not accused. And I want to note that surrogate mother writes a special certificate that has no rights and obligations concerning the child she gives birth. She isn’t connected with child genetically. From the first day of the program she understands that it’s just a program and child isn’t hers. So surrogacy is a lifesaving issue. And only those ones who went through it or need it will understand.

  4. Rachel Owen

    It’s entirely up to an individual to decide what he or she has to do with his/her life within the legal frame. In this country where people marry very young probably even before they find good jobs for themselves. It’s not the case in the west where people settle down first in their lives before starting to think of raising a family by which age sometimes. Their fertility rates might have dropped. When you can accept cancer cure and cardiac surgery procedures from west, why not the next step? After all the parentage is still clear. The consequence of such legislation, as well as the high cost of programs, gives a growing number of couples who travel to Eastern Europe in search of surrogate mothers. And with desire to become pregnant. It is a fact that Europe needs a fresh genetic material as the air. And therefore they go abroad and especially in Ukraine. This country has great donor eggs. In addition doctors in the local fertility clinics conduct the in vitro fertilization programs using only fresh biological material. As a result reach high success rates of the assisted reproductive technologies programs. Europe needs these procedures while European governments do not hurry to pass bills. So people who faced with the infertility can have such treatment and be happy to become parents.

  5. Rihanna

    Surrogacy has always been a matter of debate. But we live in a wonderful time when medicine has reached great heights. It is foolish not to take advantage of this! Answer honestly – if you didn’t have children, but had the financial resources, wouldn’t you have used them? If this were your last chance to become a parent? Of course, surrogacy should be taken very seriously, choose a reliable clinic, where there are only proven surrogate mothers, healthy physically and psychologically. And to be treated very well there. We have found such a clinic in Ukraine – it is the Feskov Clinic, which is called the Feskov Human Reproduction Group. By the way, this is the only clinic offering quality surrogate maternity packages with fixed cost, which include everything you need. Birth certificates were obtained within one day)) The clinic has everything under control. For my husband and I it was very exciting, but we did not miss it and were very satisfied. My child, my joy was born thanks to the doctors of this clinic! Good luck to all and healthy babies!

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