13. Who is recognised as the legal parent(s) of a child born following surrogacy?
a. surrogate mother Yes
b. oocyte donor No
c. sperm donor No
d. intended mother No
e. intended father Yes
On this last point, it follows from Article 7 of the law n°2021-1017 of 2 August 2021 on bioethics which takes up the case law of the Court of Cassation previously mentioned (1st Civil Chamber, 3 July 2015, No. 14-21.32; JurisData No. 2015-01587) that foreign birth certificates indicating the paternal and maternal filiations, in respect of the mother who gave birth to the child and the intended father, entered on the birth certificate and presumed to be the biological father, may be transcribed in French civil status registers.
Under French law, the mother is the one who gave birth to the child (Article 311-25 of the Civil Code). The intended mother, who by definition has not given birth to the child, can only establish filiation with the child through adoption.
The same applies to the second father who cannot be entered in the child's birth certificate, article 320 of the Civil Code prohibiting the registration of double paternal (or maternal) filiation, except adoption. Paternal filiation with regard to the second father can only be established by adoption.
14. Do mechanisms exist to transfer parentage from the surrogate mother to the intended parent(s) (e.g. adoption procedures)? No.
Since surrogate pregnancy is prohibited in France and the only possible exemption enabling a woman who has not given birth to a child to be identified as its mother is full adoption, there is no ad hoc mechanism enabling transfer of a filiation link from the surrogate mother to the intended parent. The only possible exemption enabling the woman who has not given birth to be identified as the mother is therefore full adoption.
Nevertheless, when there is no established filiation with the surrogate mother, and the child accordingly has legally established paternity only, some courts have recently been willing to accept the child's adoption by the father’s partner.
15. Is the existence of a genetic link required for establishing paternity/maternity?
YES: The paternal filiation of a child produced by a surrogate pregnancy will not be recognised in France unless it appears to correspond to the biological reality. It should be noted that the Court of Cassation has not yet ruled on the extent of the verifications to be made regarding a father’s acknowledgement of paternity when the child’s birth certificate is transcribed in France. The question is whether legal evidence of a biological filial link between the man who has registered the child should be required or whether a claimant’s voluntary declaration is sufficient.
NO: On the other hand, the genetic maternal filial link will not be recognised in the case of a surrogate pregnancy resulting from the implantation of oocytes provided by the intended mother: in France the mother is the woman who gives birth to the child (article 311-25 of the civil code).
16. Are the other parties involved mentioned in the birth certificate or other official document connected to the birth?
a. surrogate mother Yes. Case law permits the transcription of the child’s birth registration in France with mention of the maternal affiliation when the surrogate mother is entered on the birth certificate.
b. oocyte donor No
c. sperm donor No
d. intended mother No.
Between the reversal of the case law of the Court of Cassation on December 18, 2019 and the adoption of the law of 2 August 2021 on bioethics, the birth certificate of the child mentioning the intended mother, despite the fact that she has not given birth, has been fully transcribed.
Indeed, the above-mentioned law intended to reverse this case law and allow only the transcription of the birth certificate with regard to the mention of the father of intention (presumed biological).
e. intended father Yes. The Court of Cassation has ruled that the child's paternal filial link, where corresponding to the biological reality, must be entered in the French civil status register.
17. Are foreign birth certificates in surrogacy cases registered in your country. Yes under specific conditions (see reply above).