At a time of widespread debate on marriage for couples of the same sex, many are worried that this reform of French law could lead to access to medically assisted procreation (MAP) and surrogacy for these same couples.
The European Court of Human Rights (ECHR) could open the door to surrogacy in France. In effect, "even if France wanted to continue banning recourse to surrogate mothers," the legislation "would risk no longer being the only effective rampart against the development of this practice," as the ECHR "could oblige the States to give to children born through surrogacy a status equal to the others." Although "the Cour de Cassation, the Final Court of Appeal, long regarded as the Supreme Court in France, has reaffirmed the prohibition of surrogacy, this will probably not stop the train on the way." The position of the ECHR on this issue is expected in the coming months. This involves the Mennesson case: a French heterosexual couple had recourse to a surrogate mother in California and in 2011 the Final Court of Appeal refused to let them register the birth of their twins born in the United States. As a result of this refusal, they put their case to the ECHR, which declared it admissible.
Currently, children born abroad through surrogacy "receive in that country a birth certificate attesting to the birth of the child born to the father who donated the sperm and his male/female partner, or to the donor and the mother who bore the child, depending on whether or not the country recognises homosexual marriage" (as is the case in the United States). If they return to their country of origin, in this case France, these couples cannot obtain French nationality for their children. But this obstacle may be removed. While "14 European countries out of 27 have refused to authorise surrogacy, […] the majority of these reticent countries have nevertheless set up procedures to enable the children to obtain the status of nationals." Thus, even if the ECHR "is not likely to issue a ruling on the choice by a country to ban the recourse to surrogate motherhood on its territory […], the judges could still intervene on the status of children by requiring greater equality." .
However, the philosopher Sylviane Agacinski says that to permit a State "to grant a certificate of nationality to children born abroad to surrogate mothers," as decided in France by the Minister for Justice Christiane Taubira, is "worrying" and "inconsistent" if "any legalisation of the use of women as ‘surrogate mothers’ is excluded," as this practice would inevitably lead to the commercialisation of their bodies.
Still on article 12, Grégor Puppinck explains that "a State cannot grant to two people the right to marry and then refuse them the ability to found a family. This would mean giving them a formal right (the ceremony) emptied of its substance; it must not prevent a married couple from having children naturally and/or by legal means." Hence, "permitting couples of the same sex to marry not only has the result but the very goal of recognising or granting them the right to found a family. This right may be expressed through adoption or artificial procreation which is accessible to any married couple."
However, "the Court [the ECHR] has ruled that reserving artificial insemination involving an anonymous donor of sperm to infertile heterosexual couples is not discriminatory because, firstly, heterosexual couples and homosexual couples are not totally comparable and, secondly, because access to this technique in France is ‘subordinated to a therapeutic purpose’ " in the sense that it is not possible to use an artificial technique of procreation except to "remedy an infertility whose pathological nature has been medically proven" or to "prevent the transmission of a serious disease." He adds that the infertility of homosexual couples "has no physiological cause, and the function of the medical profession is not to artificially satisfy the desire to have children, or to implement a right to have a child that couples have been granted by society."
However, Grégor Puppinck affirms that "once the State commits itself to help sterile and infertile couples to found a family through artificial or medically assisted procreation, it will be very difficult in reality to refuse the same right to married couples of the same sex owing to the extensive nature of the principle of ‘non-discrimination’ and the evolution of medicine beyond its therapeutic purpose."