In a number of recent cases, French courts refused to give effect to US court decisions that recognized French intending parents as legal parents of children born through surrogacy agreements and to inscribe the foreign filiation into the French civil status registry. In the decisions in Mennesson v. France and Labassee v. France, the European Court of Human Rights (ECtHR) ruled that those refusals violated children’s right to private and family life, protected by article 8 of the European Convention on Human Rights. It dismissed claims based on the breach of parent’s right to private and family life and on violations of article 14 (non-discrimination), article 6-1 (right to a fair trial) and article 12 (right to marry).
This is the first time the ECtHR has considered the question of transnational surrogacy. The decisions tackle some of the vexing issues related to the regulation of the booming global surrogacy market. These issues include ethical and political concerns related to the commodification of the body. Also in question are the definitions of citizenship and parenthood in a context in which the differences between domestic regimes illustrate a variety of cultural and political understandings of filiation and parenthood. This post focuses on the latter set of issues and the legal uncertainties they create.
The best interests of the child were paramount to the ECtHR’s proportionality analysis, although the Court acknowledged the serious everyday hurdles families were facing (paras 87-91; paras 66-77). According to the Court, depriving the children of filiation negatively impacts fundamental aspect of their identity protected by article 8 and conflicts with their best interests that must be taken into account in all decisions that concern them. The Court stresses that they were facing legal uncertainties as to whether or not they were French citizens (para 97; para 78). Moreover, the Court highlights that children are unable to inherit from their intending parents (para 98; para 79). The Court concludes its reasoning by stating that although the state’s aims to prevent procreative tourism and the commodification of the human body are legitimate aims under the Convention, the situation created by the French judicial practice raises serious questions regarding domestic measures’ compatibility with the best interests of the child that are of primary consideration (para 99; para 78). Thus the state went beyond its margin of appreciation.
Two aspects of these decisions are worth mentioning. First, they confirm the need for an interdisciplinary perspective in the study of regulation of transnational households. Second, the effects of these decisions on the regulation of transnational surrogacy agreements remain uncertain.
Regulation of Transnational Households and Inderdisciplinarity
These rulings illustrate that questions related to the regulation of transnational households need to be assessed using an interdisciplinary approach which necessarily cuts across the public/private, international/domestic divides that are deeply rooted in legal thought, at least in the European context.
What is at stake in these decisions is in fact the compatibility of private international law or conflict of laws rules and practices with the state’s human rights obligations. The Court is providing a test for assessing the compatibility of the deployment of the public policy exception (exception d’ordre public) with the requirements of the article 8 of the Convention, and more specifically with the proportionality or margin of appreciation criteria. While the state’s margin of appreciation needs to be wide in cases in which there is no consensus between member states and in which the issue raises important ethical and moral questions, it needs to be narrowed down in situations such as these, in which fundamental aspects of one’s identity are involved.
It follows that when deploying the public policy exception the domestic judge needs to balance the interests of the community that has expressed itself through the democratic channels by expressly prohibiting surrogacy domestically, and plaintiffs’ interest to see their right to private and family life protected (para 84; para 63).
The two rulings provide insights into the definition of the margin of appreciation device. In addition, they challenge the traditional analysis of the public policy mechanism by reinforcing the balancing of rights analysis in conflict of laws thinking. Indeed, the traditional analysis delineates fundamental domestic values and determines whether the public policy exception should be deployed based on territorial or sufficient or close links criteria.
Additional Questions and Unintended Consequences
The decisions raise additional questions and potential unintended consequences. Although they seem to allow for the recognition of parental ties in same-sex and opposite-sex families that have resorted to surrogacy, the Court’s arguments produce unintended effects that might marginalize these households.
The Court defined the interests of the child in relation to the children’s biological ties with their genetic father (para 100; para 79). It stressed that the latter are crucial for children’s identity.
While recognizing alternative ways of experiencing parenthood, the Court’s reasoning also feeds into the traditional narrative, which insists on the primacy of biological ties regarding identity and legal filiation. This argument is particularly salient in the current French domestic political and legal debate surrounding recent reform allowing same-sex married couples to adopt children (Loi no 213-404 du 17 mai 2013, ouvrant le mariage aux couples de personnes de même sexe). The emphasis on biological ties highlights the role of biology in the definition of legal categories and supports arguments according to which legal filiation should rest on procreation.
Moreover, this argument might be interpreted as lending further support to the solution that is adopted in a number of countries in transnational surrogacy cases: namely the legal recognition of the genetic father-child’s relation (See the work of the Hague Conference on Private International Law on these questions and for a study in comparative private international law: International Surrogacy Arrangements: Legal Regulation at the International Level, K. Trimmings and P. Beaumont (eds.) (2013)). If the current French radical solution, which denies any legal effect to foreign valid filiation, goes beyond state’s margin of appreciation, in light of the ECtHR’s rulings (see especially para 100; para 79) the legal recognition of the relation between the genetic father and the child might be sufficient to meet the proportionality requirement, unless the best interests of the child are interpreted broadly and suppose the recognition of both parents as legal parents. But what happens when two fathers or two mothers are listed on the foreign birth certificate? Even in the case of a different-sex couple, the lack of a legal relationship between the child and the intending mother creates uncertainties regarding inheritance rights, child custody and maintenance rights in the event of the couple’s separation, and other day-to-day parental duties.
Without further clarification of the ruling, what seems to be a progressive decision is likely to reinforce the view that only genetic relations matter when it comes to parenthood and to condone a legal solution which marginalizes intending mothers by depriving them of any legally recognized relations with their children.