INTERVIEW – The judgment of the Court of Cassation could only be a “temporary solution” before the legislature intervenes, says the lawyer Marie-Anne-Frisian Roche, committed against the GPA.
Friday early afternoon, the Supreme Court will settle the difficult question of registration to the state Civil of two children born to surrogate motherhood (GPA) abroad. One year after the condemnation of France by the European Court of Human Rights (ECHR) for non-recognition of the parentage of children born to mothers carriers outside our borders, its room for maneuver seems narrow. The Court of Cassation, which has always refused to recognize the filiation of the children born of surrogacy abroad could therefore change its position.
On June 19, the Attorney General Jean-Claude Marin recommended a partial transcript of the identity of these children in the civil register, with their only biological father, and subject to a genetic test that confirms paternity. An acrobatic solution to avoid an automatic transcription of the foreign birth certificate which would, he said, “to an automatic recognition of surrogacy,” prohibited in France.
Committed against the GPA in within the collective for the respect of the person (CoRP) alongside Sylviane Agacinski, Michel Onfray or José Bové, Marie-Anne-Frisian Roche, economic law professor at Sciences Po Paris decrypts the issues and cascading consequences of the choice highly anticipated the highest court in this thorny issue GPA. It also calls for legislation to make “the French truly effective prohibition of surrogacy.”
LE FIGARO The transcript of the French population registers of births GPA for it would be abroad a first step towards the legalization of surrogacy?
Marie-Anne Frison-Roche .- If the “pro-GPA” attach so much importance to this matter at first technique for automatic transcription, transcription is that this would amount to a de facto legalization of the GPA and they know they will not get an admission by a law passed by Parliament, as the President of the Republic, François Hollande and Prime Minister, Manuel Valls, strongly opposed to the admission of the GPA in law.
So they put all their forces in the court battle to obtain the transcript in the French registry of civil status already achieved abroad. Their lawyers can pretend that they agree with the French prohibition system, their assertion is inaudible because it is the de facto tolerance of GPA in France they are seeking. Indeed, the transcript of the foreign birth of these children destroys the effectiveness of the French law that prohibits the GPA.
Friday, beyond the chosen legal solution, the way whose judges will motivate their stop is an important issue. The Supreme Court may make a very dry off, merely advocating a technical solution. It can also develop a doctrine, a definition of filiation and say what for her “child’s best interest” which could all about not being “sold” as it sells something. This had been told the Supreme Court in its 1991 landmark case
Can we imagine that the French civil status of children born overseas surrogacy is cut in two, as recommended by the prosecutor Jean-Claude Marin, with the recognition of one biological father and without mention of a mother or a second parent?
In the medium term , no. It would be like hemiplegia between a parent with a parent-child relationship can be attested and another for which the link could not be established. But in the state of law, recognize the biological father is the only thing to which France is constrained by the ECHR (European Court of Human Rights) after being convicted in June 2014. The ECHR has not defined what parentage and was to be recognized as mother. Its judgments are amazing poverty. A force to handle large concepts such parentage or identity, and apply them to specific cases closely, they conducted a fallacy because, mentioning only the biological father, reading, children would not facts by men …
Dismiss women Vital is a grotesque and untenable legal situation. Ultimately, everyone is very unhappy, feminist associations to pro-GPA who want recognition of only two intended parents. But do not forget that these children are not “ghosts”. They already have a foreign civil status.
Judges can they ignore the issues on the role of surrogate mother or the mother of intent?
The Supreme Court may well be confined solely to the question, do not venture to get high, play modesty and kick for touch by referring the matter to policy. This judgment could also be only a temporary solution before the legislator intervened. This would require a law prohibiting marital status transcript to make truly effective the French prohibition of surrogacy which must remain the principle because in France, all is not for sale. Children are not for sale.
But the same law should simultaneously improve the situation of children born GPA recognizing the place of adults who raise them, such as their legal or judicial administrators. This may take a few years but this solution is likely to succeed because there is no opposition left / right on this subject. Francois Hollande has always said its radical opposition to the GPA which it considers contrary to the dignity of the human being. I do not think there will be change in an alternating position.
What consequences the recognition of the biological father on descent?
Set parentage as a biological link and not as a public institution gives many principles involved. If children have a right to descent towards their biological father, what will be happening to the children born of LDCs? What about the biological father in artificial insemination with donor? It evokes today the opportunity of a general principle of opening the LDCs to all women for gender reasons adults. Would there be a multiplication of acknowledgments of paternity claims under a biological link? The child may assert the right to know his father or the donor the right to be recognized as a parent? There already are cases of donors who demand rights in the United States, particularly to make allocate financial benefits. What has been achieved GPA side opens a chasm LDCs side.
Do you understand the presence of the Defender of Rights in this case to defend the right of children born of surrogacy abroad?
The Defender is legitimate to intervene because the rights of children and the rights of adults are involved. He said he was opposed to the GPA in that it is contrary to fundamental rights, but he wanted an improvement in the legal situation of children who are there. However, the lawyer who represented him before the Court of Cassation (Me Spinosi), objected to the prosecutor and asked the Supreme Court to go beyond the case to settle and attach the child his two “intended parents”, defining parentage as a joint decision of two promoters of a child, and thus legalize the de facto GPA. We understand the coherence of such a request if one remembers that the lawyer also for those customers who have obtained in 2014 the ECHR judgments against France and CLARA Association which campaigns for the legalization in France of the GPA. We do not understand if we compare these words with the Rights Defender position itself.