The agreement for gestational surrogacy concluded abroad is not an obstacle to the transcription of the consistent and non-falsified birth certificate as long as the declared facts reflects reality.
Following the French and European case law in the matter, the Court of cassation has admitted that an agreement for gestational surrogacy concluded abroad was not, in itself, an obstacle to the transcription of the birth certificate of the child, but has nonetheless imposed a condition that the facts thus transcribed reflect reality. Hence, she reversed the decision which ordered the transcription of the birth certificate because it indicated that the child was born from the intended mother.
In this case, two French nationals had resorted in gestational surrogacy, thus giving birth to a child in Kiev, Ukraine, on March 31, 2014. They had then asked for the transcription of the child’s birth certificate in France, as born from both spouses, it being specified that the husband was the biological father of the child. The Court of Appeal of Rennes had granted the request for transcription of the child’s birth certificate regarding both the biological father and the intended mother. The public prosecutor had appealed it with the Court of cassation.
In a decision dated November 29, 2017, citing article 47 of the Civil Code, the Court of cassation approved the transcription of the child’s birth certificate with regards to the designation of the husband as the father of the child, effectively the biological father, but reversed the decision regarding the transcription related to the designation of the intended mother as the mother of the child.
The Court of cassation underlined that the conclusion of an agreement for gestational surrogacy is not, in itself, an obstacle to the transcription of the birth certificate of the child thus born, as long as the declared facts reflect reality.