France’s top court ruled on Friday that children born through surrogacy abroad should be recognised in France as the children of their intended parents, even though the practice is banned in the country.
France’s ban on surrogacy — the arrangement by which a woman carries and gives birth to a child on behalf of intended parents who are unable to do so themselves — has left many children born through surrogacy abroad and their parents in legal limbo, while also posing challenges for French courts.
The ruling stemmed from the case of a married male couple who had three children through surrogacy in Canada and sought official recognition in France of a Canadian court decision establishing them as the children’s legal parents.
“Given the superior interest of the child, the French ban on surrogacy does not, in itself, allow for the rejection of a foreign judgement which declares the intended parents as the legal parents of the child born through surrogacy practiced in that country,” the court said in a statement.
The decision sets a precedent in France.
The court also cited a ruling by the European Court of Human Rights, which held that a national ban cannot obstruct the relationship between a child and their intended parents.
Otherwise, “the child would be kept in legal uncertainty … which would be contrary to his best interests,” the court said.
The court stressed the Canadian authorities had verified that the surrogate mothers had consented to the surrogacy agreements and agreed to relinquish their parental rights.
Debate over France’s surrogacy ban has intensified after former prime minister and potential presidential candidate Gabriel Attal reportedly said he favoured legalising the practice on an “altruistic” basis, without remuneration for the surrogate mother.
Many of his allies oppose the move.
“I believe that women’s bodies and women’s dignity are completely incompatible with surrogacy,” said Aurore Berge, the current minister for gender equality.
Surrogacy is a divisive issue in French politics, pitting defenders of gay rights against conservatives who champion traditional family values, while also dividing advocates of women’s rights and libertarians who argue for the right to use one’s own body as one chooses.
The debate rages on also in Spain, where surrogacy is banned and dozens of children born through the practice abroad are seeking legal recognition.
The Italian government has recently made it illegal for would-be parents to go abroad to have a baby via surrogacy.
