25 August 2015
On 3rd 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.
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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.
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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:
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