ECHR – Mennesson and Labessee cases: opening the door to surrogacy

Publié le : 23 June 2014

Two laywers have reacted to the European Court of Human Rights’ recent condemnation of France for its refusal to recognise the legal relationship of children born abroad through surrogacy (Gènéthique press review) : Grégor Puppinck, Director of the ECLJ (European Centre for Law and Justice) and Aude Mirkovic, Private Law Lecturer.

For Grégor Puppinck, the ECHR is clearly opening the door to surrogacy. Two points should be emphasised. Firstly, the Court is not passing judgement on the question of the principle to ban surrogacy but “on the consequences of prohibition” namely “the consequences of refusing to recognise the legal status of adults and children“. As far as the parents are concerned, the Court notes that the applicants do not show that, in refusing, France is violating their right to respect for private and family life. For the children on the other hand, “the Court estimates that the consequences of refusing legal recognition have been disproportionate, particularly with regard to the fact that the children’s interests should take priority over other considerations,” explained Grégor Puppinck. In other words, the absence of any recognition, by French law, of the legal relationship of the children, affects the rights of the others, especially their right to respect for private life.

It should be noted that this lack of recognition was mentioned in the Taubira circular which asked courts ” ‘to deliver certificates of French citizenship (CFC)’ for children born abroad to a French father and surrogate mother“. According to Grégor Puppinck, “this circular has made French legislation inconsistent, rekindling the legal uncertainty surrounding children born through surrogacy“.

Lastly, the children have a biological link with the father, but not the mother. On this subject, Grégor Puppinck analysed that the negation of this link by France was sufficient to consider that the Court had gone too far. Because if the States have a margin of appreciation to authorise or refuse surrogacy and to recognise or refuse to recognise the relationship between children legally conceived, the Court considers that the biological link cannot be denied and that France has thus violated the children’s right to respect for their private life.

For Grégor Puppinck, this judgement essentially demands that “France puts an end to the contradiction and legal uncertainty surrounding children conceived through surrogacy and finally accepts the biological relationship“. As far as he is concerned, this type of decision “will probably do more harm than good” because it is “encouraging a practice contrary to the right of children and mothers“.

This belief was shared by Aude Mirkovic. In its decision, the ECHR “is somehow obliging us to ‘close our eyes’ when it comes to surrogacy abroad“. She added: “From now on you can quite easily go abroad and purchase a child. The European Court will provide an after sales service“. For Aude Mirkovic, there are very few solutions once “the die has been cast“. Children cannot be protected by “adopting a ‘do it yourself’ approach to their legal situation“. So how can the problem be resolved? “Avoid MAP and surrogacy, the consequences of which are irreparable“. It should also be added that “judges are refusing to collaborate with these private arrangements organised by the father or mother by refusing to grant adoption to the mother’s partner (or father’s partner) as in the Versailles and Aix courts“.

In response to this judgement, Christiane Taubira has made the following comment: “We are not going to get involved in this principle of public order (…) we are not challenging the principle of an absolute ban on surrogacy. Therefore, we are not affecting our civil code but, conversely, we are mindful of the children’s situation“.

The Secretary of State for Families, Laurence Rossignol, has just announced that the ECHR judgement will not be contested by the government

Bioethics press synthesis

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