Infertile parents are increasingly taking advantage of surrogacy options to have a child. In the United States and India, specialized clinics are available to help facilitate the process of finding a surrogate mother for infertile couples from abroad. Most Council of Europe member states ban surrogacy, which forces many European couples to turn overseas for surrogacy services.

France denies registration to surrogate children

The Mennesson and Labassee couples, both French, received surrogacy services in the US. Upon returning home, French authorities informed the couples that they suspected the children to have been born through surrogacy and thus would not be registered by the civil registrar. Both couples sought relief in French courts, and both claims were denied because the use of surrogate mothers is banned in France.

Registering the children, the courts said, would open a loophole in the law and encourage other couples to go abroad for surrogacy services. The courts noted that their decisions were not a violation of the parents’ rights to privacy and family life, as the actual act of registering the children had no direct implications on the relationship between the parents and their children.

Separate claims

The parents turned to the European Court of Human Rights. In Mennesson v. France (claim 65192/11) and Labassee v. France (claim 65941/11), separate claims were made on behalf of the parents and the children in both cases. The Court considered the claims of each separately and reached different conclusions for the claims of the parents and the children.

In considering the parents’ claims, the Court determined that the interference by French authorities with the private life and personal decisions of the parents was legally grounded and justified because France was attempting to discourage other French couples from going overseas for surrogacy services. The Strasbourg judges decided that the parents had not been able to prove that the refusal of registering the children would in any way interfere with the normal functioning of their family, as they were still allowed to settle in France. Therefore, the local courts had correctly balanced the interests of families and the state.

Children’s identity and right to private life

The Court reached a different decision after deliberating the children’s claims. The judges highlighted the fact that the children were left in a state of legal uncertainty by not being registered. Although the children had been registered as children of cell donors in the US, the refusal of French authorities to register them threatened their status and legal protections in their new homeland.

The refusal to register also jeopardized their own identity, both from a legal and personal standpoint, and could impact their ability to identify as members of French society. Although the fathers were French and there was no doubt about their fatherhood, the children were nevertheless left without the certainty of obtaining French citizenship. Furthermore, it would be impossible for children to inherit from their parents without being legally registered to them.

The Court took into account the importance of descent in forming one’s identity. Considering the potential negative impact on the children, both legally and personally, the Court ruled that French authorities made an unwarranted intervention in the children’s right for private life, which violated Article 8 of the Convention on Human Rights. The Court awarded each child 5,000 euros in damages.

Two more cases involving the use of surrogate mothers are still awaiting judgment by the Court. In Paradiso & Campanelli v. Italy, Italian authorities have taken a child, born by a Russian surrogate mother, away from its parents, and in D. & R. v. Belgium, children born by a Ukrainian surrogate mother were refused entry into Belgium. It’s easy to imagine a similar situation involving Polish law. According to the Family Code, a child’s mother is identified as the person carrying the pregnancy, even if she is a surrogate. The only avenue for infertile parents is adoption, which involves a very complicated process, especially when the child lives abroad.

Dominika Bychawska-Siniarska

This article appeared in the appendix "lawyer" to Dziennik Gazeta Legal dated July 11, 2014.