French Citizenship Rights for Surrogate Children to be Reviewed
Article source: "Enfants nés de GPA à l'étranger : le dossier Mennesson sera réexaminé", AFP, Le Progrès, 16/02/2018*
France’s highest court of appeal, the Cour de cassation, has finally published a highly anticipated ruling on the civil rights of surrogate children. The court in charge of reviewing existing court judgements (Cour de révision et réexamen) has requested a re-examination of the Mennesson case, which concerns a couple whose daughters were born abroad via surrogacy and who have spent seventeen years trying to get their children’s birth certificates transcribed into French law.
In 2011, the Cour de cassation had ruled that the couple’s daughters could not be entered in the French civil registry. This decision was challenged by the Mennessons in 2014 at the European Court of Human Rights (ECHR), which ruled in their favour and against France. The reason given was that the French state could not refuse to acknowledge children born abroad to surrogate mothers — because it violated the children’s human rights.
Ever since the “21st Century Justice” reform act (Justice du XXIe siècle) was passed, in 2016, it has been possible for certain definitive civil rulings in France to be reviewed if they are called into question by a judgement of the ECHR. The Mennessons are the first to benefit from this procedure, which was “practically invented for them,” according to their barrister, Patrice Spinosi.
In the case of both girls, the court decided that “given their nature and seriousness, the evident breaches have been prejudicial to the children.”
The Mennessons have been fighting for years to have their twins entered in the civil registry. The two girls were born in California in the year 2000 to an American surrogate mother, who had received embryos created using the husband’s sperm and eggs donated by a friend.
The birth certificates were established in accordance with Californian law, and the Mennessons were identified as the parents by the American authorities.
But when they came back to France, where surrogacy is illegal, the courts had refused to allow their children to be entered into the national civil registry. The case went as far as the highest judicial body in France, the Cour de cassation, in 2011.
But French jurisprudence has changed since then. In July 2017, a ruling by the Cour de cassation paved the way for two parents to be legally recognized in France if their children are born abroad via surrogacy — on the proviso that the standard adoption procedure be undertaken by the partner of the biological parent.
The Mennessons “don’t want to hear any talk of” adoption, which they consider “hugely discriminatory” against the women concerned, and hope that the ruling will simply allow the American birth certificates to be transcribed, Sylvie Mennesson said this week.
Friday’s decision was “the 13th court ruling” in their fight. “We’re going to see this through to the end,” she added.
“As was promised by Emmanuel Macron during the presidential election campaign, the recognition of all these children’s birth certificates must now be enforced by the government, so that all children born via surrogacy can get out of this legal and administrative impasse,” said a representative of the ADFH, a French association that supports same sex parents.
The court of review is chaired by the president of the Cour de cassation, and consists of twelve senior appeal judges.
Translated by Thomas Bulant and Juliette Combet
Editing by Sam Trainor
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