Top French court grants sur­ro­gate chil­dren le­gal recog­ni­tion

Cape Breton Post - - WORLD/IN MEMORIAM -

France’s high­est court has granted le­gal recog­ni­tion to sur­ro­gate chil­dren, in a ma­jor turn­around that will make their daily lives eas­ier and could lead to greater ac­cep­tance of new forms of fam­i­lies.

The Cour de cas­sa­tion ruled Fri­day that, while sur­ro­gacy will re­main banned in France, chil­dren born abroad through this prac­tice will now be legally tied to their par­ents and will be granted birth cer­tifi­cates and im­me­di­ate means to prove their French cit­i­zen­ship.

“This means no less than the recog­ni­tion of our child, of these chil­dren’s French cit­i­zen­ship and of the rights that go with it,’’ said Do­minique Boren, 51, fa­ther of a 4- yearold boy born in Rus­sia from a sur­ro­gate mother, with his hus­band be­side him.

Sur­ro­gacy can in­volve a woman car­ry­ing an em­bryo cre­ated by in vitro fer­til­iza­tion us­ing another woman’s egg. In some cases the sur­ro­gate mother is also the ge­netic mother of the child. The pro­ce­dures are used by het­ero­sex­ual cou­ples un­able to con­ceive, gay cou­ples, as well as sin­gle par­ents.

Un­til now, sur­ro­gate chil­dren were de­prived of any le­gal con­nec­tion to their par­ents, or any civil sta­tus in France. They were con­sid­ered as chil­dren born from un­known le­gal par­ents, since their for­eign birth cer­tifi­cates weren’t rec­og­nized. One lawyer has de­scribed them as “ghosts of the re­pub­lic.’’

Un­like other chil­dren born abroad to a French par­ent, these chil­dren couldn’t get au­to­matic ID cards or pass­ports, or register for state health care or other ser­vices.

This ex­posed them to fre­quent prob­lems, be­cause many ba­sic tasks are im­pos­si­ble in France with­out an ID or au­tho­riza­tion from a le­gal par­ent.

In ad­di­tion to po­ten­tial psy­cho­log­i­cal trou­bles due to their in­com­plete iden­ti­ties, the chil­dren were also de­prived of even­tual in­her­i­tance, and faced ma­jor im­broglios in case of a di­vorce or the death of one par­ent.

Many hope that Fri­day’s rul­ing will in­crease the op­tions for in­fer­tile and same- sex cou­ples in France. For- profit sperm banks are for­bid­den, as is sur­ro­gate par­ent­hood, seen by many as turn­ing the womb into a com­mod­ity.

Europe’s top hu­man rights court last year or­dered the coun­try to change the law on sur­ro­gate chil­dren, say­ing France’s re­fusal to rec­og­nize them was “an at­tack on the child’s iden­tity, for which de­scent is an es­sen­tial com­po­nent.’’

“This is un­doubt­edly set­ting a le­gal prece­dent con­sid­er­ing the court’s pre­vi­ous rul­ings.”

Mathieu Sto­clet, lawyer

In Fri­day’s rul­ing, the top judges had to take into ac­count the Euro­pean de­ci­sion. They found that their pre­vi­ous case law was con­trary to the Euro­pean Con­ven­tion on Hu­man Rights, and so de­cided to al­low the tran­scrip­tion of the for­eign birth cer­tifi­cates into the French civil sta­tus.

“This is un­doubt­edly set­ting a le­gal prece­dent con­sid­er­ing the court’s pre­vi­ous rul­ings,’’ Boren’s lawyer, Mathieu Sto­clet, told re­porters in front of the Cour de cas­sa­tion court­room.

The new rul­ing came in re­sponse to Boren’s case and a sep­a­rate case in­volv­ing a sin­gle man who had gone to Rus­sia to have ba­bies through sur­ro­gate moth­ers.

The Cour de cas­sa­tion said that the French birth cer­tifi­cates will have to men­tion as par­ents those who are named in the orig­i­nal for­eign birth cer­tifi­cate, even if they are not the bi­o­log­i­cal par­ents. The only con­di­tion set by the judges is to check that the orig­i­nal cer­tifi­cate is not “fal­si­fied’’ and “is cor­re­spond­ing to re­al­ity.’’

The over­whelm­ing ma­jor­ity of the French par­ents us­ing sur­ro­gacy abroad are het­ero­sex­ual cou­ples.

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