Surrogacy Law in France
Surrogacy has been always a highly debated theme. The negotiations concerning surrogacy and surrogate motherhood always include many aspects. Ethical patterns, legislative patterns, psychological patterns – everything is blended when the Surrogacy process is discussed on the highest level.
Should the medical criteria be the determinant for designing the Surrogacy process? Should the ethical criteria be taken into consideration when imposing the legal prohibition on surrogacy and surrogate motherhood? Should everyone have freedom in choosing Fertility Treatment? Should the psychological criteria be the vital pattern for answering “yes, you can apply for Surrogacy services”?
Surrogacy and surrogate motherhood are prohibited in many European countries. Couples wishing to form their family and having a baby, with Surrogacy as their only option travel abroad to design the international surrogacy cycles. Commercializing surrogacy makes it the boutique Treatment option in several countries but surely, there are the alternative Price Bundles for the couples with a limited budget. But will their newborns be recognized in their countries when they return home, with their newborn bundle of joy and the foreign birth certificates in their hands?
At present, French legislation literally turns it possible to design the Surrogacy for gay couples. But for and lesbian couples and heterosexual couples this option is still banned. These French couples may try IVF Treatment, but if it doesn’t work, they cannot apply for Surrogacy. There are severe cases when infertility is caused by the non–functional uterus or complete absence of the uterus. In these cases, the Surrogacy is the only option to have a child. Following this medical pattern, the legislation should allow the Surrogacy in these cases. But will it be legally implemented?
FRANCE
Summary of the Legal Surrogacy Framing in France. Surrogacy is ILLEGAL in France.
The French Civil Code imposes the prohibition on Surrogacy process and surrogate motherhood in an implicit way. There is no strong legal definition for Surrogacy yet but it would be designed in the nearest future. The currently valid legislation shapes the prohibition. But the draft version of the brand–new law on French Surrogacy may be shaped through the transparent discussions among the legal elite, medical elite, and high political elite. These negotiations may lead to the hot debates, and if the inclusive consensus established, it will disrupt the negative attitudes to Surrogacy.
Inclusive Legal Framing for Surrogacy in France:
1. Is there a specific law that regulates Surrogacy in France?
Yes, the Surrogacy is regulated by a specific law in France. An inclusive and transparent legal framing for this question is represented in the French Civil Code.
The French Civil Code, in Chapter II “Of the Respect of the Human Body,” Article 16–7 states that “all agreements relating to procreation or gestation on account of a third party are void.” The content of the valid French legislation shapes the prohibition only in Article 16–7. The content hasn’t shaped the legal definition for Surrogacy and surrogate mother.
2. Is there any other law that imposes the other legal framing on Surrogacy (by the inclusive–exclusive content fixed in some document) in France?
No, it is not. The Surrogacy is regulated only by Article 16–7 of the Civil Code.
3. Is there a legal definition or a correct legal interpretation of the term “Surrogacy” in France?
There is no legal framing for this question yet. The legal framing for defining Surrogacy hasn’t been proposed even in draft version yet.
4. Is Surrogacy prohibited in France?
Surrogacy is prohibited by the French law. All kinds of Surrogacy (altruistic and commercial, gestational and traditional, for French couples and for foreign couples) are prohibited in France according to the French legislation.
5. Is access to Surrogacy in France subject to specific criteria (medical criteria or other criteria)?
There is no legal framing for this question yet.
6. If Surrogacy is allowed, is it lawful for the surrogate mother to receive: refund of medical expenses, refund of other expenses, compensation for loss of income, other financial compensation (Financial Compensation for Surrogacy)?
There is no legal framing for this question yet. Surrogacy is prohibited in France.
7. Can the surrogate mother also be the oocyte donor? Is there the option of designing Traditional Surrogacy cycle through IUI Treatment (Intrauterine Insemination Treatment)?
There is no legal framing for this question yet. Surrogacy is prohibited in France.
8. Is it lawful to pay any Surrogacy fees for designing the Surrogacy program to a facilitator/Surrogacy Agency in France?
No. Surrogacy is prohibited in France.
9. If Surrogacy is legally prohibited (banned/forbidden according to the legislation), is the conduct of the following persons involved in the Surrogacy process criminalized by the French law?
(I) surrogate mother – No;
(II) intended parent(s) – Yes*;
The French Penal Code in Section IV “Offences against Filiation,” Articles 227–12 to 227–14 declares the following: Article 227–12: “The incitement of the parents or one of them to abandon a born or unborn child, made either for pecuniary gain, or by gifts, promises, threats or abuse of authority, is punished by six months’ imprisonment and a fine of €7,500. Acting for pecuniary gain as an intermediary between a person desiring to adopt a child and a parent desiring to abandon its born or unborn child is punished by one year of imprisonment and a fine of €15,000. The penalties provided by the second paragraph apply to act as an intermediary between a person or a couple desiring to receive a child and a woman agreeing to bear this child with the intent to give it up to them. Where the offense is habitually committed for pecuniary gain, the penalties incurred are doubled. Attempt to commit the offenses referred to under the second and a third paragraph of the present article are subject to the same penalties.”
Article 227–13 states that: “Wilful substitution, false representation or concealment which infringes the civil status of a child is punished by three years of imprisonment and a fine of €45,000. Attempt to commit this offense is subject to the same penalties.”
Article 227–14 states that “Legal persons may incur criminal liability for the offenses under the present Section, pursuant to the conditions set out under article 121–2. The penalties incurred by legal persons are (1) a fine, pursuant to the conditions set out under article 131–38; (2) the penalties referred to in 1°, 2°, 3°, 8° and 9° of article 131–39.”
(III) oocyte/sperm donor – No*;
(IV) facilitator/Surrogacy Agency – Yes.
Surrogacy is prohibited in France. Surrogacy agency/Facilitator will be criminalized by the French law. Under the French Penal Code, the Surrogacy Agency’s Representatives will be sentenced to fine payment or even imprisonment.
10. Who is recognized as the legal parent(s) of a newborn born by the surrogate mother?
(I) surrogate mother – Yes;
(II) oocyte donor – No;
(III) sperm donor – No;
(IV) intended mother – No;
(V) intended father – Yes.
The Court of Cassation’s proposal for the newborns born by the surrogate mother abroad, legally shapes the following: the foreign birth certificates indicating the paternity and maternity, in respect of the mother who gave birth to the newborn and the intended father, entered on the birth certificate and presumed to have the genetic link with the newborn, may be transcribed in French civil status registers.
The surrogate mother is recognized as the legal mother of the newborn.
Intended mother will be recognized as the legal mother only if she adopts the newborn.
If the intended father doesn’t have the genetic link to the child (the donated sperm was used), he is not recognized as legal father unless a legally valid transfer of parentage has taken place.
11. Is it possible to legally transfer the parentage from the surrogate mother to the intended parents through the adoption?
Paternity can be transferred to the newborn but maternity cannot be legally transferred from the surrogate mother to the intended mother. The full adoption process should be designed to transfer the legal maternity to the intended mother. The French Civil Code’s content (Title VIII “Of Adoption,” Articles 343 to 370–5) shapes the exclusive criteria for legal adoption. Article 343 states the age limitations for the intended parents who wish to adopt the newborn or the child. Legal adoption of the newborn or the child is possible for French intended parents “married for more than two years or who are both older than 28 years.” Article 344 states that the intended parents must be 15 years older than the children whom they propose to adopt. According to the French legislation (Article 346 of the Civil Code), no one (no one newborn, no one child) can be adopted by several persons.” The whole process of adoption has its own time-frame from two months till six months.
12. Is the existence of a genetic link between the newborn born by the surrogate mother required for establishing legal parentage (legal paternity or/and legal maternity)?
For establishing the legal paternity, yes, the genetic link can be proved through the genetic DNA testing. For establishing the legal maternity, no, even having the genetic link to the newborn, the French legislation states that the legal mother is the woman who gave the birth to the child.
13. Whose names will be mentioned in the newborn’s birth certificate?
(I) surrogate mother – Yes;
(II) oocyte donor – No;
(III) sperm donor – No;
(IV) intended mother – No;
(V) intended father – Yes.
Surrogate mother’s full name will be mentioned in the newborn’s Birth Certificate. For establishing the legal paternity, yes, the genetic link can be proved through the genetic DNA testing. If the DNA test proves the paternity, the intended father’s name will be mentioned in the newborn’s birth certificate.
14. Are foreign Birth Certificates in Surrogacy cases registered in France?
Yes, the French Court may recognize the foreign Birth Certificate of the newborn born abroad. French couple wishing for having their newborn and designed the international Surrogacy process abroad will have to legislate the Birth Certificate in France. The validation of the newborn’s birth certificate and the recognition of the transfer of legal parentage should be approved by the French Court. But the French Court may withdraw the request.
Something to say?
I am standing on the beach barefoot… Three years later…
Everything That I Have Is the Gorgeous Sunshine…
Everything That Is Left Is the Gorgeous Sunshine…
I am standing on the pure white sand barefoot. Jewel–toned sparkling tears appear in my eyes. Sometimes I just cannot hold them back because of the utmost frustration. Everything has faded away in my life and disappeared into the fragrant air flows. Everything that was so precious is turned into nothing more than an ILLUSION…
We think that we POSSESS TIME. But the truth is the TIME POSSESS US. It turns everything in the Glittering whirl. After that it can disrupt everything to design something absolutely different, turning everything into just an Illusion. Everything disappears. Everything seems elusive as it has never ever entered the reality before.
Everything That I Have Is the Gorgeous Sunshine…
Everything That Is Left Is the Gorgeous Sunshine…
Tears... No one knows how many diamond–shaped, jewel–toned tears of all forms and sizes may roll down the cheeks...COUNTLESS? Nope. Here is the timeline for TEARS. And here is the truth: after two weeks of tears I feel nothing, I even cannot burst into tears as I have already run of them… Everything is faded for me. No shapes, no colors, no voices, no whispers. Everything That Is Left Is the Gorgeous Sunshine…
I can see it in faded version because my eyes are sparkling with tears. Tears design that special diamond tone of my eyes. But that sparkling will be just a “False Impression” as my eyes cannot “see” what is around. They are blurred with such a SORROW I have never felt before.
Everything That I Have Is the Gorgeous Sunshine…
The bustling whirls of Gorgeous Sunshine make everything So Unique… So Sparkling… So Meaningful… It makes the tiny details so meaningful. It makes the jewel–toned tears so hurtful by making every tear visible through outlining with the golden shine its full shape. The tears sized as huge diamonds are so heavy that it is hard to hold them back by just closing the eyes. Even closing the eyes, I can feel that unique golden sunshine. Its sparkling color. Its warm touch… In a glimpse, everything seems beyond my imagination… Gorgeous sunshine features my heavy curls with its golden touch. Pastel–colored tulles of my floaty gown are whirling by the air flows that design their ruffled shape.
It is hard to breathe. Everything that was so sparkling turns into the darkness. It makes everything deep and dark and challenging and hard. All that you have after anger leaves you are the darkness and the tears. The close–up hands are on my décolleté. This soothes me every time when anxiety disrupts my breathing. Only that gorgeous sunshine reminds me how precious everything was for me. It makes the elusive things special. Sometimes, the ideal synchrony of events is disrupted because the Dream cannot come true. I know that. Sometimes everything is measured in “moments or minutes or hours.” What we have after? Just a feeling of somebody’s fingertips on our wrists, just a feeling of “virtual” hugs, just the memorized “virtual” voices. But will they ever allow us, French couples, wishing to have the tiny ones through surrogacy, to feel that tiny elusive fingertips bustling on our wrists? Will they ever allow us to feel those elusive hugs that tiny elusive fingertips, and tiny elusive palms, and tiny elusive hands are trying to make on our décolleté? Will they ever allow us to feel the warmth of that tiny elusive hearts beating? Will they ever allow us to glance in those tiny elusive eyes that are “wandering around?” No one knows that. But the hope always is. And the hope to have a surrogacy option in France may be turned real.