CHAPTER 5: THE FILIATION OF A CHILD BORN ABROAD FOLLOWING GESTATIONAL SURROGACY IN THE FRENCH AND EUROPEAN COURT OF HUMAN RIGHTS CASE-LAW

Abstract

As gestational surrogacy was forbidden in France in July 2015, the French supreme court decided to depart from previous case-law on the matter after the European Court of Human Rights (ECHR) ruled against France in four separate cases. Now, (as in the April 2017 communication1), the French Cour de Cassation has ruled that in the case of gestational surrogacy carried out abroad, the birth certificate of a child born by way of such method may be added to the French civil register along with the father’s name and without the mother’s name as she did not deliver birth.
The article provides an analysis of this change in case-law. First part will examine the evolution of gestational surrogacy-related case-law and the measures taken by the French legislator on the matter. Second part will focus on the Cour de cassation’s turnaround in case-law that followed the ECHR ruling against France on the issue of the approval by domestic law of the legal relationship established between a French biological father and a child born abroad as a result of surrogacy treatment.