1. Is surrogacy regulated by a specific law in your country? Yes
Article 16-7 of the civil code establishes the principle that agreements on surrogate procreation or pregnancy are null and void. This is a public order provision (article 16-9 du code civil).
Article 227-12 of the criminal code prescribes a penalty of one year's imprisonment and a fine of € 15,000 for acting as an intermediary between a person or a couple wishing to receive a child and a woman prepared to bear this child for the purpose of giving it to them. When the acts have been committed repeatedly or for commercial gain the penalties are doubled.
2. Is surrogacy regulated in another way? (please specify) No
3. Has surrogacy been the subject of jurisprudence/court cases in your country?
Pursuant to the former case law of the Court of Cassation of 13 September 2013, a child born under a surrogate pregnancy agreement could not enjoy legal recognition in France of the filiation in respect of its intended parents, even if they had been cited as the child's parents on a foreign birth certificate legally established abroad (1st Civil Chamber, 13 September 2013, Nos. 12-30.138 and 12-18.315).
By two judgments delivered on 3 July 2015 (1st Civil Chamber, 3 July 2015, No. 14-21.32; JurisData No. 2015-01587), the Court of Cassation ruled that the child's paternal filiation, where it corresponds to the biological reality, should be entered in the French civil status register, thereby drawing the legal conclusions of the Mennesson v. France and Labassee v. France judgments handed down by the European Court of Human Rights on 26 June 2014, which found against France on this issue.
These two judgments did not call into question the principle of the absolute prohibition of surrogacy in France, but ensure that the right to respect for private and family life is upheld under the terms of Article 8 of the European Convention on Human Rights and Fundamental Freedoms.
The French courts have therefore gradually developed case law intended to offer legal solutions to the situations of these children. The European Court of Human Rights recently validated this case law with two decisions of December 12, 2019 and July 16, 2020.
In its decision of July 16, 2020 (D. v. France), the European Court of Human Rights ruled in particular that the refusal to transcribe the birth certificate of a child born abroad from a surrogacy does not infringe the right to respect for the private and family life of the child in that the adoption procedure makes it possible to recognize a bond of filiation between the child and his intended parent.
However, despite the compliance of the French system with the European Convention, the Court of Cassation, by two judgments of December 18, 2019, modified its case law, by modifying its interpretation of Article 47 of the Civil Code on the probative value of acts of the foreign civil status. It is now considered that the assessment of the conformity with the "reality" of a foreign civil status document is assessed with regard to the criteria of foreign national law and not those of French law. It thus ordered the total transcription of foreign civil status documents drawn up following a surrogacy agreement, even with regard to the intended mother who has not been given birth or the second father.
This reversal of case law has forced the Parliament to return to the case law of the Court of Cassation before its reversal of last December, and therefore, to regulate the recognition of the filiation of children born at the end of a surrogacy agreement carried out abroad. Article 7 of the law n°2021-1017 of 2 August 2021 on bioethics has returned to the state of the law before the reversal of the case law of the Court of Cassation of 18 December 2019 by allowing the transcription of the foreign birth certificate with regard to the father indicated in the act, while prohibiting the transcription with regard to the woman who has not given birth or with regard to a second father, except adoption.
4. Is there a legal definition of the term “surrogacy”? (please specify) Article 16-7 of the civil code, which prohibits surrogate pregnancies, refers to: “any agreement on surrogate procreation or pregnancy”. There is otherwise no definition of surrogacy as such.