Adventures in Globalized Surrogacy: French Court Rules on Twins Case

Within the last couple of days the highest court in France ruled on a surrogacy case that’s been working its way through that countries courts for some time.    It raises some interesting questions.  

Here’s the basic story.   Surrogacy is illegal in France.    When Sylvie Mennesson and her husband Domenique were unable to have children, they came to the US.   In 2000 twins were born in California using a third-party egg, Domenique’s sperm and a surrogate.   Under the law of California the Mennessons are recognized as the parents of these children.    The Mennessons took the twins back to France. 

As far as I can tell, problems arose when the Mennessons tried to list the twins in the civil registry, because consistent with outlawing surrogacy, French courts don’t want to recognize the resulting children as the Mennessons children.  

Now I confess to being unclear on French law and so I cannot say exactly what this does (and does not) mean.  It says in the articles I’ve read that being listed in the civil registry is necessary in order for the twins to get documents,  including passports.   Does this amount to saying that the twins are not French citizens?  ( Since the children were born in the US they are both US citizens, though the Mennessons are both French citizens.)   Does it mean that the Mennessons are not legally parents of the twins?   The court does says the twins can continue to live with the Mennessons (which is good, as the twins are ten).

Obviously French law is quite different from US law and so the whole organization of parentage may be different.   It is possible that the Mennessons’ status vis-a-vis the twins is both clear and secure  even without the civil registry.  Maybe someone can enlighten us. 

Even in the absence of detailed legal knowledge, there are points to be made here.   Looming in the background are questions about the appropriate treatment of surrogacy.   You can read a lot about that on this blog under the “surrogacy” tag.     

Putting all that to one side, though, you can see there are questions about what to do when different countries (or states) have vastly different law in place.  One could say that CA is within its rights to arrange its law as it chooses and France is also within its rights to do the same.    (Notice that this requires an assumption that surrogacy is the sort of thing about which people are allowed to disagree.  If you think there is an absolute right/wrong here (like moral rights) then you won’t agree that CA and France can properly reach different conclusions.  One of them would have to be wrong.) 

If CA and France can reach different conclusions, what should happen we people travel between the two systems?   You can see why a French court, trying to maintain the integrity of the French legal system, doesn’t want to allow such an obvious evasion of French law.  This might lead you to wonder if the result would be different had the Mennessons been living in California for a period of time before and after the birth of the twins, so that it didn’t seem that they had engaged in reproductive tourism or whether the result would be different for a bi-national couple that had lived in CA for many years and only moved to France within the last several years.  

But you can also see that the French ruling might (and I emphasize might, as I do not know enough about French law) create significant hardship for this family and particularly for these ten-year-olds who had no control over the manner of their conception and birth.   Perhaps there is a compelling argument that the rights of the individual children here ought to trump other concerns.    In many ways this is simply another variation on a theme I’ve raised before–the difficulty of resolving the conflict between a specific case and a general principle.      

There could be a further appeal in this case–one to the European Court of Human Rights.  If there is, it might raise the question about the role of individual rights here.   I’ll keep watch for it.


12 responses to “Adventures in Globalized Surrogacy: French Court Rules on Twins Case

  1. Julie
    I’d imagine France considers him the Father same as California right? He may not be married to the woman who gave birth he must have signed a VAP claiming them as his biological offspring. At issue would be the fact that he wants his wife to be treated as their mother rather than the woman who gave birth who is not really their mother but is erroneously listed as such in California, I’d think? At this point the woman that gave birth and his wife are neither one the mother although his wife has raised his kids that long she’s that defacto thing you talk about.

    It struck me as odd that you said they were not considered parents – are they challenging his parenthood as well?

    • I’m sorry to be so slow in responding. I see info below that is useful, too. But I think the French husband must not be the father of the child (in the eyes of France, anyway) or I would think the children could be listed on the rolls. I realize that is backwards reasoning, but I think it must be as Natalie Gamble, below, suggests.

  2. We have the similar issues here in the UK: since UK law treats the legal parents at birth as a surrogate and her husband (if she is married) the resulting children are not British and not the children of their parents. This is totally irrespective of any foreign court order or birth certificate naming them as such. There is (unlike in France it seems) a legal solution in the UK at least, which is to apply to the UK family courts after the birth for a special order which reassigns parenthood. However, the legal process is complex and expensive if more than expenses has been paid to the surrogate (which is invariably the case in cross-border surrogacy situations) and the result is that some parents do not apply, leaving some children without the right legal status and identity, just like these French twins. It’s also worth noting that the problems are even worse in cases involving a destination country which is not the US (such as India or the Ukraine) since the children will not be born citizens of the destination country, and they are then stateless.

    • I have a question. If a married mother tells the party recording the birth that it was not her husband who fathered the child she delivered, would they still force her to name him as father? Even if she could prove the child was not his with a DNA test? A man does not have the ability to claim another man’s child from him just because he happens to be married to the mother does he? That would be like kidnapping. I know sometimes the mother will collude with her husband to somehow block the man who fathered the child from performance of his parental obligations. That’s like kidnapping to me as well. But certainly if the mother says the husband is not the father and can prove it – I can’t imagine a reason for naming him father.

    • Much to think about here. Different countries will have different rules about whether the marital presumption can be rebutted. And since France draws a fairly hard line against surrogacy, I wonder if it is particularly unwilling to rebut the presumption that the husband of the surrogate is the father in a case like this?

      What is the UK result if the surrogate is unmarried?

  3. As I understand from this blog, either member of the marriage can rebut the presumption of paternity. But the fellow from outside the marriage can not.

    • I think its unfair that a mother can conspire with her husband to prevent her child’s father from taking responsibility for and raising his child to adulthood. I really feel like this is kidnapping and is unfair to the child and the child’s paternal relatives. What do you think Kisarita?

      • Hmm. I don’t think any fellow walking down the block, or even an ex boyfriend, should be able to walk into a family court and order a paternity test. That would allow frivolous or vindictive people to run around wreaking havoc on families. There must be some kind of reasonable cause beyond he said, she said. This would be rare. But if proven, then I say sure, the biological father is the real father.

  4. If France wants to outlaw reproductive tourism, let them make a specific law about it. A law whose penalty applies to the adults only. Instead, they’re basically declaring the kids illegitimate. How medieval of them.

    • True enough. This may be consistent and pure, but it does seem to be unfair to the children who have no say in any of this. I imagine that could be the basis on which it will be appealed to the European Court.

  5. If they were challenging the couple’s custody of the children, that would be one thing. But they’re not. They are perfectly content to have them be the parents of the children in France, send them to French schools, etc, as long as they get to make their statement. I thought illegitamacy went out years ago…

  6. Let me bring to you few information as the father of these twin girls, according to the california vital records. At first, we must remember that surrogacy was legal in France before 1991, until the supreme court judged illegal a step parent adoption after surrogacy. This decision made a huge controversy : is it fair to create by case law a prohibition system which stands on harming children ?

    In 1994, laws were voted in France to ban surrogacy. Surrogacy agreements are declared null, and only brokers or doctors are criminalized in case of being part of a surrogacy journey. There is nothing against surrogates and intended parents, except if thy are doing false birth declarations. And the law is totally silent about the situation of children born from surrogacy in a foreign country. Moreover, a 1991 case law in the court of appel of Paris recognized the US birth certificate and translated it in french records. Following that situation, hundreds of french couples went to Canada and USA to build their family through surrogacy. We were part of them. Everything was fine until a judgment in 2002 which canceled the translation of the US birth certificates in the french records, arguing that surrogacy was illegal adoption (!!!!) and making a strong confusion between national public order and international public order.

    After a ten year battle, we have a supreme court decision which is Kafka like. The children born from surrogacy abroad have no legal existence in France because gestational agreements violate the french conception of “the unavailability of the civil status”, according to the judges. The issue is that the principle of “”the unavailability of the civil status” is absolutely not written in the french law, and morever, France accepts adoption, sperm and embryo donation and transexualism, which are opposite to that principle coming from nowhere. Moreover, the judges considered that allowing the children to live with their parents (in fact before they get 18, after, they will strangers not allowed to stay in France because no more minors) is a sufficient thing to respect children’s right as defined by the European Convention of Human Rights and by the international convention of New-York of children’s rights. Is there any people to believe that children’s rights are just the ability to stay with their parents during a limited time ? Just think about all the other rights that are unreachable when you have no recognized civil status in the country where you live…

    France is a country with too many bigots. Due to religion influenced laws, French people are going abroad for late abortions, sperm and egg donations, and surrogacy. But when they come back, only children born from surrogacy are penalized. What do you think of that ?

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