Richard Oppong (Lancaster Law School) has written an article on “Private International Law in Africa: Past, Present and Future” in the latest issue of the American Journal of Comparative Law ((2007) 55 AJCL 677-719.) Here’s the abstract:

The development of private international law has stagnated in Africa for some time now. This is reflected in the neglected and undeveloped state of the subject, and the near absence of Africa in international processes, academic forums, writings, and institutions that have significance for the subject. This article explores the present and future state of the subject in Africa by situating it in a historical context. It challenges the often unarticulated assumption of writers on private international law in Africa that the subject and issues it addresses came to Africa only after the advent of colonization. It suggests that although the specific rules may be difficult to ascertain, conflict of laws problems existed in pre-colonial Africa and were, consistent with current theories on pre-modern societies, addressed by a mixture of practices and mechanisms that tended towards conflicts avoidance and lex forism. It notes that during the colonial period the subject developed without any clear theoretical underpinnings, was deployed to fulfil narrow political and commercial goals, and was largely insulated from international developments. The article argues that a new dawn is rising in which the subject will occupy a prominent place with regard to many issues in Africa. It examines how an emerging academic interest in the subject, current economic integration initiatives, harmonization of laws, drive to promote trade and investment, constitutionalism and human rights, and other developments will impact private international law in Africa.

Available to AJCL subscribers.

You are a French couple and you cannot have a baby? One option is to fly to San Diego and to find a surrogate mother. Now, you should really want it, because 1) California is almost on the other side of the world, 2) it can get pretty warm out there, especially when half of the state is burning and 3) French authorities will give you a really hard time when you will come back.

The French press reports this week-end on how French authorities have been doing everything they could to prevent a French couple who resorted to a Californian surrogate mother from gaining recognition in France of their parental status. The Paris Court of appeal has just ruled in their favour, but I could not see the decision. The article of Liberation can be found here (in French).

Californian dream

Meet Dominique and Sylvie. In 1998, they learned that they could not have a baby, as Sylvie discovered she had no uterus. They did not want to adopt, but knew that surrogacy was legal in California (Liberation reports that they understood that it was even viewed with favor). They flew there, found a francophile surrogate mother, Mary. Eventually, two girls were born on October 25, 2000. Dominique and Sylvie say that their experience was great. Californian authorities delivered a birth certificate providing that they were the parents. Time to go back home.

Problems began on American soil. Dominique and Sylvie sought to establish a French passport for the children. At the French consulate, they were told that it would not be easy. Several comparable requests were on hold. A French officer told them off the record that the best was probably to get a U.S. passport. They got one easily, and “with big smiles” (i.e. the Americans were happy to deliver the passport).

Welcome back

But that was only the beginning. French consular authorities had liaised with French prosecutors. Upon arrival in France, the couple was investigated by the French police, who searched their home, their offices, even her doctor’s office. In 2001, they were charged with a variety of French criminal offences, including attempt to fraud civil registries (because they wanted to have the children registered in France as theirs, i.e. have the American birth certificate recognized in France) and facilitating the dealing of children between a parent willing to adopt and a parent willing to abandon his/her child. In 2004, a French investigating judge dismissed the charges on the ground that French criminal law did not apply to acts which took place abroad, in a jurisdiction where they were legal.

In the meantime, prosecutors had also initiated civil proceedings. The point was to set aside the transcription on the French registries of the parental relationship, and get a judicial declaration that Dominique and Sylvie were not the parents of the children. The Paris court of appeal has just dismissed the proceedings a few days ago. Although I could not read the decision, I understand that it rules that the children should be considered for all purposes as the daughters of the couple.

Recognition of foreign birth certificates

From the perspective of the conflict of laws, the case raises the very interesting issue of the recognition of foreign birth certificates. These are typically not judicial decisions, and I guess that Californian ones are not either. The issue is therefore whether to apply the law of foreign judgments to them, or at least similar rules. Under French law, the answer is clearly that you should apply similar rules. However, there are very few precedents, and French writers do not agree on the requirements that foreign public acts ought to meet to be recognized in France. Yet, most of them would agree on the three following propositions:

1) the foreign public act may not be reviewed on the merits,

2) however, it should not be contrary to public policy (i.e. its solution should not be shocking from a French perspective),

3) there should be no fraude à la loi (i.e. it should not have been obtained for the sole purpose of avoiding the application of French law).

In the present case, two arguments could be made against the recognition of the Californian certificate. First, even though the certificate was not to be reviewed on the merits, it could have been argued that it was contrary to French public policy. The issue here was how badly surrogacy is perceived in France. Is it only a remarkable foreign practice, or is it a practice which is repugnant to the French society? The story of Dominique and Sylvie made the front page of Liberation, with the following headline: Ca vient (“It is coming”). The French law prohibiting surrogacy dates back to 1994, but is meant to be revised in 2009, and it is Liberation‘s hope that the ban will end then (See the editorial here). It may be, then, that the French society has reached the point where, although it is not a legal practice yet, it is not anymore contrary to French public policy.

However, the second argument which could be made was much stronger. It seems that the French couple had indeed flown to San Diego for the sole purpose of avoiding the French ban. The practice remains illegal in France. Going abroad for no other reason than obtaining the application of another law is a fraude à la loi. It will be interesting to see how the court responded to that argument, if the argument was put forward at all.

The British Institute of International and Comparative Law holds on Monday 26 November 2007, 17:30 to 19:30 a seminar on Recognition of Foreign Insolvency Proceedings in the US. This seminar is part of the British Institute’s 2007-2008 Seminar Series on Private International Law. For further information, have a look at the Institute´s seminar website.