Right to a child, PMA, GPA, filiation, assisted reproduction, surrogacy, parentage, adoption, European Convention on Human Rights, Article 8 ECHR, best interests of the child, Court of Cassation, Conseil d'État, ECHR, Civil Code, Article 311-20, Declaration of the Rights of Man and of the Citizen, Article 6, Article 14, Human Rights Convention, private and family life, transcription of birth certificates, recognition of filiation, medically assisted procreation, anonymous donor, parenthood, fundamental freedom, equality of rights, equality before the law
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Abstract
The article discusses the evolution of the right to a child in France, particularly in cases involving PMA and GPA abroad, and the recognition of filiation.
Contents
Access to PMA and GPA subject to controversial conditions
Conditions of access to PMA
Conditions subject to debate
Establishment of filiation of children and consecration of the right to the child
The hegemony of parental will over biological will
The adaptation of jurisprudence to fact situations aiming to ensure the superior interest of the child
Access to PMA and GPA subject to controversial conditions
Conditions of access to PMA
Conditions subject to debate
Establishment of filiation of children and consecration of the right to the child
The hegemony of parental will over biological will
The adaptation of jurisprudence to fact situations aiming to ensure the superior interest of the child
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Extract
[...] Towards the recognition of a right to the child? On the occasion of a the Court of Cassation ruling of 4 October 2019 concerning a case in which the Court had to rule on a 15-year-long dispute over the recognition of the filiation of a child born through surrogacy abroad, a practice prohibited in France, the Court recognized, under Article 8 of the European Convention on the protection of human rights and fundamental freedoms, that the filiation should be recognized, in particular to ensure the interests of the child and the right of the parents to access parentage. [...]
[...] If access to PMA and GPA remains controversial the establishment of filiation is strengthened to ensure the best interests of the child: consecrating a right to a child I. Access to PMA and GPA subject to controversial conditions A. Conditions of access to PMA In accordance with Article L 2141-2 of the Public Health Code - amended by the law of 9 July 2011: medical assistance must be a necessity. In fact, this article sets the legal framework for access to PMA and allows for an understanding of the legal framework of access to parenthood through other means than natural. [...]
[...] France and Labasse v. France, the ECHR condemned France for a violation of Article 8 of the Convention, in particular with regard to an interference with the respect for the private and family life of the children. Following this position, the Court of Cassation also reversed a jurisprudence: by 2 judgments of 3 July 2015, the court sets the principle that the adoption contract does not prevent the transcription of the birth certificate provided that it is neither irregular nor falsified, and that the facts are in accordance with reality. [...]
[...] Furthermore, a reflection is opened regarding the right to respect for one's private and family life (Article 8 ECHR, which the judge raises, notably that the judge has the opportunity to mention in the context of contentious proceedings for the transcription of birth certificates, and therefore the recognition of filiationCass. civ July 2017). If the European Court of Human Rights considers that there is a margin of appreciation of the States in the access to PMA techniquesECHR Nov 2011, S.H. and others v. Austria) ,the Constitutional Council considers PMA as conform to article 6 of the ECHRCC May 2013). II. The establishment of filiation of children and the consecration of the right to the child A. [...]
[...] Furthermore, Article 311-20 of the Civil Code establishes the notion of the spouse's consent, which is valid only if they are alive. Thus, access to parenthood for the mother through GPA when the spouse dies is impossible. B. Conditions subject to debate PMA remains closed to homosexual couples and single women, a current debate is taking place in Parliament to open PMA to female couples but the law has not yet been ratified by the President of the Republic. Therefore, a question arises: is this a violation of the equality of rights and equality before the law - in accordance with Article 6 of the Declaration of the Rights of Man and of the Citizen and Article 14 of the Human Rights Convention. [...]
