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.