(Blogmensgo, gay blog, 30 June, 2014) In a dual judgment of June 26, 2014, the European Court of Human Rights (ECHR) unanimously ruled against the ban by France to establish a parent filiation with their children from a surrogacy (GPA) legal abroad. But the jury did not rule on the Prohibition of the GPA by France.
ECHR judgment of June 26th
France refused two heterosexual couples, Mennesson and Labassee recognition of their teenage daughters who were all born in the United States and also refused to grant a bond of filiation with the biological Father.
The French position prohibited ipso facto the French nationality to the children born by surrogacy abroad, while even the US Justice dept legally recognised and granted a legal relationship between the parents and their four children.
The supreme court, in a judgment of April 6th, 2011, considered that the GPA is certainly legal in the United states, but the surrogacy agreements that are entered there with French couples are illegal.
The seven European judges delivered a verdict that gives largely due to two pairs of complainants. Regarding the violation of Article 8 of the European Convention on Human Rights (specifically the right to respect for private and family life) the jury ruled unanimously that France has in fact violated Article 8 ‘Regarding the right of children to respect for their private life’ but it did not violate with regard to the applicants right to respect for family life.
But on the subject of the GPA, each state is free to act on the GPA, but each decision must both give precedence to the best interests of the child and not cause too much of a glaring imbalance between the interests of the state and those individuals directly affected.
About undermining respect for family life, the court considers that the applicants have not established this accordingly insurmountable. However, it is currently impossible for children to get French nationality if it does not have a subsidiary element of identity and the denial of the heiresses of their right to inherit and by increasing the estate tax. The case is even less in the interest of the child, according to the ECHR, that one of the parents is also parent of the child….
So the French state went beyond what it is allowed by discrection, by refusing filiation to the biological father.
The judgement of the ECHR condemns France to costs and require the country to pay 5000 Euros to each of the three children for moral damage. France has three months to appeal to the Grand Chamber of the ECHR.
Comment: Judgment of the ECHR is a subtlety close to ratiocination. The geometry of this judgment is too variable and of course….it solves nothing.
It confirms the right of France to prohibit the GPA, but ordered them to ‘legalise’ the fruit of the GPA. In other words, it is like France banned doping, but approved the performance obtained through doping substances from abroad (it is a lousy comparison but does in effect simplify to show the shortcomings of the law and the stance with the European powers that be).
Although applicants are heterosexual couples here, the homosexual couples can at least rely on that judgment to finally get the recognition of parentage with their children born of a surrogate mother abroad.
France is therefore entitled to recognise the filiation of these children while prohibiting GPA within its own countries borders. As already are a dozen other countries, including Switzerland and Belgium….what hyprocrisy!
This article has been translated from our French blog, to view the original, click here.
Philca and Matt / MensGo
Via the French Press of June 26th and rfi English