30 July 2015

Rhonda Powell

Switzerland’s highest court has refused to recognise the parent-child relationship between a four year old surrogate-born child and one of her two gay fathers. According to the Court, commercial surrogacy is akin to commodification of the child and of the surrogate mother’s body.

The Federal Supreme Court of Switzerland

The child was born to a Californian surrogate mother who conceived by artificial conception using a donated egg and sperm from one of the two Swiss men. The couple were both recorded as the child’s parents on its Californian birth certificate and were granted full parental rights in California. They later applied for legal recognition of their parental status in Switzerland. In denying parental status to the non-genetic father, the Court confirmed Switzerland’s legal position, which does not recognise any form of surrogacy.

As a result, only one of the child’s two fathers is named on the Swiss civil register. This means that the child has no recognised legal relationship with its other father, with implications for inheritance rights, and for ongoing parental rights and responsibilities and child support. Swiss law, like New Zealand law, deems the surrogate mother and her partner to be the child’s parents, regardless of the circumstances. Homosexual couples are also not allowed to adopt children in Switzerland. (In New Zealand homosexual couples can adopt children.)

Whether or not surrogacy does amount to commodification, it is hard to see how denying legal recognition of an existing parent-child relationship in Switzerland will serve to protect the corporeal rights of the Californian woman who gave birth to the child four years previously. It is equally unclear how this will ‘undo’ any perceived commodification of the child.

In 2014, the European Court of Human Rights ruled that failing to accord surrogate-born children full legal recognition is a breach of their right to respect for family life protected by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This was because of the importance to the child’s wellbeing of recognising the parental relationship with both parents (not just the parent with a genetic connection).

The same reasoning should apply to the Swiss case – that the child’s right to respect for family life is sufficiently important that Switzerland’s public policy objectives must take a back seat.

It is one thing to create a regulatory regime that discourages surrogacy. It is another to deny a parent-child relationship for a child who has already been living in the custody of the parent for four years.

This case is yet another reminder of the need for comprehensive and cohesive regulation of surrogacy. With increases in the number of couples commissioning surrogacy internationally, it is imperative that national and international laws are developed to ensure that the rights of the child, the surrogate mother and the intending parents are protected.

20 August 2015

Rhonda Powell

https://srxa.files.wordpress.com/2013/05/genetic-link-to-post-partum-depression.jpg

These days, families come in many forms and are created in many ways. Some children have two mothers, some two fathers, some have two parents, some have one parent and many have more than two adults playing de-facto parental roles. Some people conceive naturally. Some conceive through self-insemination or in-vitro fertilisation (IVF) and some commission a surrogate mother to carry and give birth to a child on their behalf.

New Zealand surrogacy laws lack coherence and need rethinking. As one aspect of this, the importance and role of the genetic parent-child relationship should be explored further.

In New Zealand, Ethics Committee on Assisted Reproductive Technology (ECART) approval is required for the IVF process where a surrogate mother is involved. Retaining a genetic parent-child connection is seen as the reason for commissioning surrogacy rather than adopting and so surrogacy without a genetic connection is considered ‘unethical’ by ECART.

Immigration New Zealand takes a similar position when considering applications for couples to bring children born to overseas surrogate mothers into New Zealand. If genetic tests do not show a genetic link between the child and at least one commissioning parent, the child may need to be adopted overseas. This can be problematic if the country of the child’s birth country already deems the commissioning parents to be the child’s legal parents.

New Zealand’s parental status law takes a different approach and treats genetics as irrelevant. The birth mother and her partner (if she has one and they consent to the arrangement) are deemed to be the child’s parents irrespective of circumstances.

For children conceived by IVF, ignoring genetics brings about the legislation’s intended result: the birth mother and her partner are the child’s parents in law. Donors have no legal parental relationship with the child. However, for children born as a result of surrogacy (with or without a donor egg or sperm), ignoring genetics brings about an unintended result: the surrogate and her partner are the child’s parents in law.

Maintaining genetic connections is important to many New Zealanders. For example, in Māori communities, practices such as whāngai (fostering or adopting within extended whānau) maintain genetic connections, even if this is not between parent and child. Whāngai nonetheless upholds the Māori concept of whakapapa, which emphasises the importance of genealogy to identity.

However, in some cases, a legal requirement for a genetic parent-child connection will be an obstacle to forming a family. Our laws need to recognise that when it comes to families, just like other relationships, there is no one size that fits all.

25 August 2015

Annick Masselot

On 3^rd July 2015, France’s highest civil court, the Cour de Cassation (Court of Cassation) held that children born to surrogates abroad with one French intended parent have the right to be granted a French birth certificate and to be granted French citizenship.

La Cour de Cassation

The Court considered two cases involving French fathers have had children through surrogate mothers in Russia. The children had been given Russian birth certificates. The fathers applied to have the Russian birth certificates transcribed into the French birth registers. These applications had been denied by the French Public Prosecutor, who argued that as surrogacy is illegal in France, children born of surrogate mother could not receive a French birth certificate.

This case is significant because prior to this ruling, children born abroad to a foreign surrogate would effectively end up stateless, even though they were the recognised child of a French parent. The Cour de Cassation’s decision come within the context of a recent ruling of the European Court of Human Rights, which condemn France for denying a child born overseas to a French parent the right to be included in the French birth registry. The European Court of Human Rights held that France was in breach of Article 8 of the European Convention on Human Rights because it effectively denies children the right to establish an identity.

In addition to following the European Court of Human Rights’ ruling, the Cour de Cassation applied Article 18 of the French Civil Code to the letter. This article provides that a child who has at least one French parent is French in accordance with the droit du sang. The Cour de Cassation acknowledges that being born to surrogate mothers cannot be a factor preventing the children attaining French citizenship.

The ruling is seen as a landmark case, which has the potential to pave the way for the legal acceptance of diverse forms of family. At the moment the ruling only allows for the biological father and the birth mother to be included on the birth certificate. Thus, extended parentage and non-biological parents are still excluded from legal recognition.

The court has reiterated that surrogacy remains illegal in France despite this ruling. In France, surrogacy is contrary to public policy, regardless of whether it is commercial or altruistic.

Annick Masselot is an Associate Professor in the College of Business and Law. Her research interests include EU Law, the development of family friendly law and policies, and pregnancy and maternity rights.

Read more:

http://www.franceinfo.fr/actu/societe/article/la-cour-de-cassation-valide-l-inscription-l-etat-civil-d-enfants-nes-de-gpa-l-etranger-700392 (in French)

Press release of the Cour de Cassation: https://www.courdecassation.fr/documents_traduits_2850/english_2851/the_transcription_7252/press_release_32236.html

Cour de cassation case no 619 (in English): https://www.courdecassation.fr/documents_traduits_2850/english_2851/the_transcription_7252/ruling_no._619_32234.html

Cour de cassation case no 620 (in English): https://www.courdecassation.fr/documents_traduits_2850/english_2851/the_transcription_7252/ruling_no._620_32235.html