19. Is there an important current debate in your country on these or related issues? NA
20. Delegations are invited to provide information, in this section, on particular cases encountered in their country, and especially their case-law.
Homologous insemination in a married couple has no legal incidence: the mother’s spouse becomes the child’s biological father; the means of conception (natural or artificial) has no legal incidence, nor does consent or the lack of it.
Heterologous insemination, on the other hand, raises legal questions concerning filiation. The donor of the sperm is certainly the child’s biological father, but it is impossible to prove legal paternity as the identity of the donor is in principle unknown to the mother and the doctor is sworn to secrecy. Furthermore, no action to prove paternity may be opened in this case as Article 85 para. 1 of the Code of the Family and Guardianship makes sexual intercourse a prerequisite of such action.
The question of the legal paternity of the child thus remains open. In the case of an unmarried woman, action to prove paternity should be excluded, as the donor has the right to remain anonymous. However, if the child is born in wedlock or within 300 days of the marriage being dissolved or annulled, the mother’s husband is presumed to be the legal father. He may take action to contest his paternity within six months of finding out about the birth (art. 63). This is a peremptory time limit, after which only the public prosecutor may institute such proceedings.
The situation is more complex in the event of heterologous insemination carried out with the husband’s consent. As there are no specific legal provisions in the matter, the husband has the right to contest his paternity even though he did give his consent. Theoretically he only needs to prove that the birth was the result of MAP. However, according to a decision of the Court of Cassation on 27 October 1983: “Action by the spouse of the mother contesting paternity of a child born following MAP performed, with said spouse’s consent, with the sperm of another man may be considered contrary to public policy.” In stating its reasons, the Court stressed the importance of the child’s welfare, arguing that if it were to accept an action contesting the father’s paternity of a child born following MAP carried out with his consent using another man’s sperm, the child would, to all intents and purposes, be fatherless; it would be virtually impossible to prove the paternity of the donor because of the rules protecting his anonymity. And the donor has no interest in proving his paternity. This interpretation also takes into account the interests of the family formed subsequent to the couple’s decision to have recourse to MAP.