An Insight from a French Surrogacy Lawyer
Caroline Mecary is a lawyer at the Paris Bar since 1991. She has written several legal publications such as “Art et Techniques de la Plaidoirie”; LexisNexis 2011; “Le Pacs 2010”, Delmas 2009; “L’Adoption” Puf 2006; “Le Couple Homosexuel et le Droit”, Odile Jacob 2001, etc) and articles published amongst the press.
Caroline Mecary is a highly sought-after lawyer in France and in foreign countries on the questions concerning discrimination, whatever the criteria (sex, race, sexual orientation, handicap, etc…) in the legal field (criminal law, family law, labour law). She intervenes before French jurisdictions as well as before the European Court of Human Rights, on topics such as opening civil marriage to all, adoption of the partner’s child, homophobic discrimination or surrogacy. Concerning the latter, she regularly helps heterosexual and homosexual couples who had recourse to surrogacy outside of France. She has obtained Court decisions in favour of the transcription of foreign birth certificates, which are published on her blog: http://avocats.fr/space/caroline.mecary (cf mainly TGI Nantes 10th February 2011, TGI Nantes, 17th March 2011, CA Rennes 21st February 2012).
Indeed, France considers that a surrogacy contract is null and void. On a judicial point of view, what does it effectively mean? It means that in practice nobody can claim the enforcement of this contract before French Courts: transfer of a child to adoptive parents when the biological mother refuses to deliver the child and conversely oblige the adoptive parents to take the child if they don’t want it. In both cases, the Court will declare that the contract is non-existent and will not rule.
However, some foreign countries recognize the validity of a surrogacy contract, like for instance United Kingdom, The Netherlands, Greece, Ukraine, India, and some States of United States, so that hundreds of heterosexual and homosexual couples travel to one of these countries.
When a child is born in such context, the child’s birth certificate must be officially apostilled and translated. Also, and contrary to common belief, the said birth certificate does establish the filiation and French authorities cannot dispute this fact.
Therefore, due to the undeniable evidence of filiation of the foreign birth certificate, the child is French in accordance with Article 18 of the French Civil Code : “Est français l’enfant don’t l’un des parents au moins est français” (“The child is French as long as one of the parents is French”), the child’s father being a French citizen.
Transcript requests of birth certificates are either cancelled by the jurisdictions or refused, thus placing the children in a complex situation: they have a filiation without any doubt, but do not possess a French civil status certificate which enables to obtain an identity card and a passport. Those children are subject to a segregation based on their mode of conception.
Caroline Mecary works towards a resolution to this issue from a practical point of view by defending couples encountering difficulties in obtaining papers for their children (national identity card and passport). More generally, she has published reports so that this question find a solution (cf Libération 3rd September 2012). At the same time, she closely works with parliamentarians in order to change the law (cf proposal of the group Les Verts, registered by the Senate on 27th August 2012, aiming at opening the marriage to same-sex persons and defining the conditions of legal parenthood.)