Comments on: Flying to California to Bypass the French Ban on Surrogacy http://conflictoflaws.net/2007/flying-to-california-to-bypass-the-french-ban-on-surrogacy/ News and Views in Private International Law Wed, 10 Mar 2010 23:33:28 -0800 http://wordpress.org/?v=2.9.2 hourly 1 By: Bypassing French Surrogacy Law via California - Surrogacy & Egg Donation Issues http://conflictoflaws.net/2007/flying-to-california-to-bypass-the-french-ban-on-surrogacy/comment-page-1/#comment-20315 Bypassing French Surrogacy Law via California - Surrogacy & Egg Donation Issues Thu, 14 Feb 2008 00:04:28 +0000 http://www.conflictoflaws.net/2007/jurisdiction/usa/flying-to-california-to-bypass-the-french-ban-on-surrogacy/#comment-20315 [...] few weeks ago, I wrote a post on the story of a French couple who bypassed the French ban on surrogacy by resorting to a [...] [...] few weeks ago, I wrote a post on the story of a French couple who bypassed the French ban on surrogacy by resorting to a [...]

]]> By: the french couple http://conflictoflaws.net/2007/flying-to-california-to-bypass-the-french-ban-on-surrogacy/comment-page-1/#comment-13438 the french couple Wed, 05 Dec 2007 23:25:15 +0000 http://www.conflictoflaws.net/2007/jurisdiction/usa/flying-to-california-to-bypass-the-french-ban-on-surrogacy/#comment-13438 The french State seems to have misunderstood the "international public order", which is evocated in the decision of the Appeal Court of Paris. You can have further informations on Sylvie and Dominique's website : http://claradoc.gpa.free.fr The french State seems to have misunderstood the “international public order”, which is evocated in the decision of the Appeal Court of Paris.
You can have further informations on Sylvie and Dominique’s website :

http://claradoc.gpa.free.fr

]]> By: Esurnir http://conflictoflaws.net/2007/flying-to-california-to-bypass-the-french-ban-on-surrogacy/comment-page-1/#comment-13433 Esurnir Wed, 05 Dec 2007 22:38:15 +0000 http://www.conflictoflaws.net/2007/jurisdiction/usa/flying-to-california-to-bypass-the-french-ban-on-surrogacy/#comment-13433 http://www.davidtate.fr/spip.php?article1039 Sorry it's in french, but here is the decision. http://www.davidtate.fr/spip.php?article1039

Sorry it’s in french, but here is the decision.

]]> By: Apokrif http://conflictoflaws.net/2007/flying-to-california-to-bypass-the-french-ban-on-surrogacy/comment-page-1/#comment-13428 Apokrif Wed, 05 Dec 2007 20:51:22 +0000 http://www.conflictoflaws.net/2007/jurisdiction/usa/flying-to-california-to-bypass-the-french-ban-on-surrogacy/#comment-13428 According to http://www.maitre-eolas.fr/2007/11/30/800-la-cour-d-appel-de-paris-a-t-elle-valide-une-gestation-pour-autrui , breach of "ordre public" is not enough to prevent the birth certificate from being recognized in France, because for the lawsuit by the public prosecutor to be admissible, it is *also* necessary that the statements of the certificate are untrue, which cannot be the case here, because these statements come from a judgment by the supreme court of California. Moreover, if the judgment were not recognized in France, this could infringe article 3.1 of international convention on child's rights, because the children would no longer have any birth certificate and would lose their French nationality. According to http://www.maitre-eolas.fr/2007/11/30/800-la-cour-d-appel-de-paris-a-t-elle-valide-une-gestation-pour-autrui , breach of “ordre public” is not enough to prevent the birth certificate from being recognized in France, because for the lawsuit by the public prosecutor to be admissible, it is *also* necessary that the statements of the certificate are untrue, which cannot be the case here, because these statements come from a judgment by the supreme court of California.

Moreover, if the judgment were not recognized in France, this could infringe article 3.1 of international convention on child’s rights, because the children would no longer have any birth certificate and would lose their French nationality.

]]> By: Gilles Cuniberti http://conflictoflaws.net/2007/flying-to-california-to-bypass-the-french-ban-on-surrogacy/comment-page-1/#comment-11792 Gilles Cuniberti Mon, 05 Nov 2007 16:49:11 +0000 http://www.conflictoflaws.net/2007/jurisdiction/usa/flying-to-california-to-bypass-the-french-ban-on-surrogacy/#comment-11792 Thanks for you comment, Kees. There is no doubt in my mind that what you state is the traditional French position. I am not sure, though, that the delineation between choice of law and recognition is really settled under French law, however clear it is in Pierre Callé's mind. Now, whatever the traditional position was, this new judgment does not comport with it. I could not read it, so it is unclear what it actually orders, but my understanding is that it allows the transcription of the parental status in France. My point on public policy is that it changes over time (actualité de l'ordre public), and that the fact that Liberation advocates a change is evidence that it is indeed changing on this topic. Thanks for you comment, Kees.

There is no doubt in my mind that what you state is the traditional French position. I am not sure, though, that the delineation between choice of law and recognition is really settled under French law, however clear it is in Pierre Callé’s mind.

Now, whatever the traditional position was, this new judgment does not comport with it. I could not read it, so it is unclear what it actually orders, but my understanding is that it allows the transcription of the parental status in France.

My point on public policy is that it changes over time (actualité de l’ordre public), and that the fact that Liberation advocates a change is evidence that it is indeed changing on this topic.

]]> By: Kees Saarloos (NL) http://conflictoflaws.net/2007/flying-to-california-to-bypass-the-french-ban-on-surrogacy/comment-page-1/#comment-11791 Kees Saarloos (NL) Mon, 05 Nov 2007 16:37:40 +0000 http://www.conflictoflaws.net/2007/jurisdiction/usa/flying-to-california-to-bypass-the-french-ban-on-surrogacy/#comment-11791 Hello, Interesting message. The Cour de Cassation held on various occassions that the adoption in France of children born as a result of a surrogacy agreement is not possible, because it violates French public policy (e.g. Dalloz 2007, 1251; 2005, 476; 2004, 1998; 2002, 2902; 1994, 581). It does not matter whether the child is born in France or abroad. The consequences of this case law are severe: the child remains almost an orphan. With regard to the PIL issues, I have some doubt about the statement that the contents of birth certificates is recognised in France. This is certainly true in as far as it concerns the facts which are mentioned on the birth certificate, such as the fact that the woman mentioned on the record gave birth the child mentioned (art. 47 Code Civil). However, in as far as I am aware, it is not true with regard to the legal relations, such as the legal paternity of the man mentioned in the birth record (e.g. Callé, Validité et execution de l'acte authentique étranger, RCDIP 2005, 377, at 384). Whether the man mentioned on the birth record is the legal father of the child is determined according to the French conflict rules on parentage. I would say that the same applies to legal maternity. In case of surrogacy, the mention on the 'mother's' name is a legal relation not a fact: it is evidence of her legal maternity, not of the fact that she gave birth to the child. The question who is the legal mother in case of surrogacy is determined by the lex causae. However, because of the case law cited above, I doubt whether French public policy allows for another woman to be the legal mother than the woman who gave birth to the child. Hello,

Interesting message. The Cour de Cassation held on various occassions that the adoption in France of children born as a result of a surrogacy agreement is not possible, because it violates French public policy (e.g. Dalloz 2007, 1251; 2005, 476; 2004, 1998; 2002, 2902; 1994, 581). It does not matter whether the child is born in France or abroad. The consequences of this case law are severe: the child remains almost an orphan.

With regard to the PIL issues, I have some doubt about the statement that the contents of birth certificates is recognised in France. This is certainly true in as far as it concerns the facts which are mentioned on the birth certificate, such as the fact that the woman mentioned on the record gave birth the child mentioned (art. 47 Code Civil). However, in as far as I am aware, it is not true with regard to the legal relations, such as the legal paternity of the man mentioned in the birth record (e.g. Callé, Validité et execution de l’acte authentique étranger, RCDIP 2005, 377, at 384). Whether the man mentioned on the birth record is the legal father of the child is determined according to the French conflict rules on parentage. I would say that the same applies to legal maternity. In case of surrogacy, the mention on the ‘mother’s’ name is a legal relation not a fact: it is evidence of her legal maternity, not of the fact that she gave birth to the child. The question who is the legal mother in case of surrogacy is determined by the lex causae. However, because of the case law cited above, I doubt whether French public policy allows for another woman to be the legal mother than the woman who gave birth to the child.

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