The case concerns the challenge before the French Court of Cassation (Cour de Cassation) of a refusal by the Court of Appeal of Rennes to register on the French civil registries the birth certificate of a child who was born in Canada as a result of a surrogacy procedure, and the recognition of parental relationship between that child and one of the applicants. In this case, both parents were a couple of men. The Cour de Cassation ruled in favour of the applicants and ordered the registration of the child's birth certificate on the French registries, designating both parents as fathers of the child.
Article 8 of the European Convention on Human Rights
Article 3(1) of the UN Convention on the Rights of the Child
Article 47 of the French Civil Code
The applicants are two male French nationals, Mr F.N. and Mr Q. A., and their son, J.A.N., who was born in Canada through surrogacy. Mr Q.A. is the biological father and Mr F.N. is the parent (father) of intention. The couple requested the registration of the child's foreign birth certificate on the French civil registries. The parents and the child requested the Court of First Instance of Nantes to allow the registration in spite of the opposition of the Public Prosecutor. Such registration was permitted by the Court of First Instance of Nantes in a decision of 14 December 2017. The Public prosecutor lodged an appeal to challenge that decision. The Court of Appeal of Rennes quashed the decision and denied the registration, arguing that the French Civil Code prohibits surrogacy and that there is no biological relationship between the child and Mr F.N. The applicants further appealed the decision before the French Cour de Cassation.
The applicants challenged the decision of the Court of Appeal of Rennes which denied the registration of the child’s birth certificate on the French civil registry on the ground that the French Civil Code prohibits surrogacy and that there is no biological relationship between the child and Mr F.N.
The applicants argued that Article 47 of the French Civil Code allows not to recognise the validity of foreign acts of civil status only when they were not drawn up pursuant to the formalities stated in the law under which they were made (i.e., the foreign legislation). The validity of these acts shall be assessed in accordance with the law of the country of issuance.
Consequently, by denying the registration, the Court of Appeal of Rennes infringed Article 47 of the French Civil Code, as the document was duly drawn up pursuant to the applicable laws of Canada.
Furthermore, the applicants argued that the decision violated Article 8 ECHR which encompasses the right to respect for private and family life. The sole fact that the child was born in a foreign country by surrogacy should not impede the registration of the parental relationship on the birth certificate and on French registries. The child was born through surrogacy, which is legally permitted under the law of the country where he was born (i.e., in Canada).
Moreover, the applicants argue that the Court of Appeal of Rennes denied the registration without taking into consideration the best interests of the child and based only on the existence of a surrogacy agreement.
The Court of Appeal of Rennes considered that the birth certificate did not comply with the applicable rules of form and substance stated in Article 47 of the French Civil Code because it designates as parents two individuals of the same gender, which itself cannot correspond to the reality because just one of the two men can be the biological father. This circumstance excludes the other man from being the father.
The Court of Appeal of Rennes interpreted Article 47 of the French Civil Code in the sense that its application requires a legal reality that must be provided within French law.
In order to protect the best interests of the child, the Court of Appeal of Rennes acknowledged that surrogacy is not an obstacle to the registration of a birth certificate, but in this case only a partial registration would be possible, absent any legal reality. Consequently, the Court of Appeal of Rennes ordered the partial registration of the birth certificate, designating Mr. Q.A. as biological father because he is the first person mentioned as father on the Canadian birth certificate.
The Cour de Cassation (the Court) overturned the decision of the Court of Appeal of Rennes and ordered the registration of the parental relationship on the civil status registers.
As a starting point, the Court recalled the wording of Article 3(1) of the UN Convention on the Rights of the Child, as well as Article 8 European Convention on Human Rights and Article 47 of the French Civil Code.
The Court stated that, in light of the latest case law issued by the European Court of Human Rights, the best interest of the child should be a primary consideration in all decisions that involve children. The circumstance of being born as a result of a surrogacy agreement cannot disproportionately infringe the right to respect for private life of the child, nor prevent the registration of the birth certificate issued by the foreign authorities concerning the parental relationship of the biological father and the intended parent of the child, even if it is prohibited under Articles 16-7 and 16-9 of the French Civil Code.
Subsequently, based on Article 47 of the French Civil Code, the Court ruled that the Court of Appeal of Rennes had considered that the conditions of validity of the foreign act of civil status were met, in particular that the act was not subject to any fraud and that it was established in compliance with the legislation applicable in the state of British Columbia in Canada. Therefore, the Court of Appeal of Rennes could not deny the registration of the parental relationship on the civil status and on the birth certificate without violating Article 47.
"[…] It follows from [Article 47 of the French Civil Code], as interpreted by the European Court of Human Rights (Advisory Opinion of 10 April 2019) that in light of the best interests of the child, the fact that the birth of a child is the result of a surrogacy agreement executed abroad, prohibited by Articles 16-7 and 16-9 of the Civil Code, cannot, alone and without disproportionately infringing the child’s right to respect for private life, prevent the transcription of the birth certificate issued by the authorities of the foreign State, with regard to the biological father of the child, nor the recognition of the parent-child relationship in respect of the mother of intention mentioned in the foreign document, which must take place when this link between the child and the mother of intention has materialized, at the latest (Cour de Cassation, 4 October 2019, No. 10-19.053 para. 6)". (paragraph 10)
The Court added that the sex of the intended parent does not lead to a different reasoning.
Finally, the Court explained the need to further develop the case law relating to surrogacy:
"[…]The case law of the Cour de Cassation (5 July 2017, No. 15-28.597, No. 16-16.901 and 16-50.025 and No. 16-16.455) which, in the presence of a legal gap and searching for a balance between the public policy prohibition of surrogacy and the best interests of the child, has refused, based on article 47 of the French Civil Code, the full registration of foreign birth certificates of children born to surrogacy, in consideration of, in particular, the fact that the infringement of their right to respect for their private life was not disproportionate, given that the option of adoption was open to the spouse of the biological father, cannot be applied when the introduction of adoption proceedings proves impossible or inappropriate to the situation of the persons concerned." (paragraph 12)
The Cour de Cassation ordered the registration of the child's birth certificate on the French registries despite the existence of a surrogacy agreement and irrespective of the fact that the constituted parental relationship would be with two men as fathers.
- Dalloz - Actualité:
GPA et transcription de l’acte de naissance de l’enfant : la Cour de cassation persiste et signe
- Lexbase:
Transcription intégrale de l’acte de naissance d’un enfant né de GPA à l’étranger : nouvel exemple
- Law Journal "Droit de la famille" :
- Law Journal "La Semaine Juridique Notariale et Inmobilier" No. 6 – February 2022
- Law Journal "Personnes et Famille" :
Nécessaire transcription de l'acte de naissance étranger mentionnant deux pères
- Law Journal "La Gazette du Palais"
Loi bioéthique : entre Assemblée et Sénat que sont devenus
les modes d’établissement de la filiation par PMA et GPA ?
The legal status of surrogacy in Europe – page 5
The previous case law of the Cour of Cassation in relation to the registration of birth certificates corresponding to children born in a foreign country by surrogacy:
- Cour de Cassation, 5 July 2017, No. 15-28.597, see here.
- Cour de Cassation, 5 July 2017, No. 16-16.901 and 16-50.025, see here.
- Cour de Cassation, 5 July 2017, No. 16-16.455, see here.
- Cour de Cassation, 18 December 2019, No. 18-12.327, see here.
- Cour de Cassation, 4 October 2019, No. 10-19.053, see here.
Initial decision issued by the Court of Appeal of Rennes:
- Cour d'appel de Rennes, 13 May 2019, No. 18/00336, see here.
Advisory opinion of 10 April 2019:
- Advisory opinion issued by the European Court of Human Rights concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, see here.
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