the nuances of filiation law in same-sex couples with insights from a landmark Court of Cassation ruling. Discover how Article 342-11 of the Civil Code navigates the complexities of equality, personal liberty, and family rights. Learn about the specific regime for same-sex couples, the role of parental projects, and the balance between legal security and fundamental rights. Understand the implications of this judgment on the establishment of filiation and the challenges it poses to the principle of equality. Explore the intricacies of French law as it adapts to diverse family structures, ensuring the rights of all parents and children are considered
Extract
[...] - Introduction and detailed plan The recognition of parenthood in homosexual couples should it follow the same legal mechanisms as in heterosexual couples? This question was posed to the Court of Cassation. In the spaceisThis, two women having a project of assisted reproductive technology (ART) with a third-party donor, wanted to establish the filiation of their future child by hand.here anticipatedis located nearisof the civil officer. In fact, couples of women who resort to this procedure must realize in front of a notary, a joint anticipated recognition to establish the filiation of the woman who does not give birth. [...]
[...] - Risk of stigmatisation/differentiated treatment based on sexual orientation. An exclusion of harm ruled out by the Court due to the guarantees offered by the legal framework. - Absence of harm to the principle of equality: difference related to the object of the law. - Respect for personal freedom: voluntary recognition, expressed within the framework of the parental project. - Private and family life preserved: mention not visible on extracts of birth certificate. - The Court finds: balanced, proportionate, and in line with fundamental rights. [...]
[...] - In female couples: absence of presumption of maternity for the motherison 'by intention'. - The Court holds that the difference in treatment is based on an objectively founded difference in situation. II) The constitutional criticisms of a persona government different fromenriched and its limits A procedural and financial burdenisre - Recourse to a notary: heavy formalism, additional cost. - Impossibleit is complex and rigid to establish filiation by a declaratory act : complexity and rigidity. - Damage to the freeis of civil status acts and equality in theaccessis related to filiation. [...]
[...] These two women therefore contested this difference in treatment. DisThereafter, in the face of the civil registrar's refusal, they brought an action before the judicial court so that this recognition could be recorded. The court referred a priority constitutional question to the Court of Cassation. (QPC) without the content of which was then as follows 'Article 342-11 of the Civil Code, in that it imposes on couples of women who have recourse to assisted reproductive technology with a third-party donor of proceduresthe to a joint anticipated recognition for establishing filiation in respect of the woman who does not give birth to the child does it infringe the principle of equality and in particular the principle of equality between men and women, personal freedom, the right to a normal family life, the right to respect for private life as well as the fundamental principle recognized by the laws of the Republic of the gratuitous establishment of civil status acts? [...]
[...] This reregime, validis based on a justification founded on the specificity of the parental link in same-sex couples but souisalso raises criticisms regarding fundamental rights (II). The Court's justification for a specific regime A recognition based on parental project - Creation by the bioethics law of a specific regime - Objective of securing: avoid post-adoption, ensure a double filiation ofisat birth, notary as guarantor. For example, notice of March (n° 17-70.039), the Court recalls that before the reform, filiation with regard to the motherisconcerning intention could only be established by adoption. [...]
