A same-sex French couple have won a partial victory in their fight to be recognised as the legal parents of their child, who was born via surrogacy in the USA.
The couple had asked the Cour de Cassation, France's highest court, to recognise the Californian birth certificate of their child, which lists both men as the child's parents. The court declined the request, but granted the non-biological father the right to apply to adopt the child, so that both men will be legal parents.
Lawyer Patrice Spinosi who acted for one of the families in the case said: 'The court chose a third path, between refusal and transcription pure and simple. That clearly isn’t satisfying for every family, but it allows children born to surrogates to establish a legal relationship with both parents, the biological father and the sociological father,'
Surrogacy is illegal in France, with penalties up to €7500 or six months in jail. It is not technically illegal to use a surrogate abroad, in a jurisdiction where it is permitted, but authorities have found ways to disincentivise families from choosing this path.
Historically, surrogate-born children were refused French citizenship: while a child born abroad as a result of a casual sexual encounter would be automatically entitled to French nationality, a child born through surrogacy abroad would be refused. In 2014 the European Court of Human Rights ordered France to legally recognise children born to foreign surrogates, and to give such children inheritance rights equal to other children of French parentage.
Thus in 20312 the French courts ruled that children born through surrogacy could inherit nationality from their biological parents. This was helpful to the children in question – sometimes referred to as 'ghosts of the republic' – bringing them out of legal limbo. In the case of gay couples, however, this meant that only one of the couple could establish a legal relationship to the child.
Gay couples have been legally allowed to marry and adopt in France since 2013, but adoption has been refused in cases where children have been born via surrogate.
Catholic groups within France such as Printemps Français support the ban on surrogacy and oppose measures which allow couples to get around it by travelling abroad.