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Who is involved in a surrogacy?
Surrogacy in France
Surrogacy in other countries
Parental rights with surrogacy
PacisLexis Family Law
Surrogacy lawyer
Surrogacy, also known as surrogacy or “GPA” (Gestation Pour Autrui), involves a contractual arrangement between a woman, commonly referred to as a “surrogate mother,” and a couple known as the “intended parents.”
In surrogacy, a couple can hire the services of a surrogate mother to carry and give birth to a child on their behalf. Subsequently, the surrogate mother relinquishes custody of the child to the intended parents upon the child’s birth.
Surrogacy is a method of assisted reproductive technology that allows for the transfer of an embryo, typically resulting from in vitro fertilization or insemination, into the uterus of the surrogate mother.
There are three possible scenarios to consider:
- Both members of the couple are the genetic parents of the child.
- Only one member of the couple has a genetic connection to the child.
- Neither member of the couple has a genetic link with the child.
Through this article, our aim is to provide you with objective and clear information about surrogacy (GPA).
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Who is involved in surrogacy?
Who are the intended parents?
Prospective parents or single parent are people looking to have a child and facing issues preventing them to carry the child themselves.
The couple or the single parent must figure out whether they want to work with an agency throughout the surrogacy process or to pursue surrogacy independently.
A legal contract is drafted between the intended parents and the surrogate mother that states the rights and obligations of both parties.
Who are the fathers involved in surrogacy?
There are 3 types of fathers:
- The intended father who provides his sperm: he is the intended father and the genetic father
- The intended father who did not provide his sperm: he is the intended father but not the genetics’ one.
- The sperm donor: he is not the child’s intended father but the genetics’ one.
Who are the mothers involved in surrogacy?
There are several distinctions:
- the child is biologically related to the intended mother who gave her egg.
- The child is not biologically related to the intended mother
- The surrogate mother: she will carry the child during the pregnancy and will give up the child to the intended parent(s).
- The surrogate is also the biological mother of the child she carries also called traditional surrogacy. Her egg is fertilised using sperm from the intended father or a donor using intrauterine insemination.
- The child is not biologically related to the surrogate mother, also called in gestational surrogacy. The embryo is created using an egg from a donor or the intended mother using in vitro fertilisation called FIV in France (Fécondation in vitro) or IVF.
Who are the professionals involved in surrogacy?
– Surrogacy agencies:
Surrogacy agencies provide any or all surrogacy services, including matching, screening, case management, support, counselling, legal contracts, pregnancy follow-up.
They provide support to intended parents with the legal documents for their trip and the child’s one to their country.
– Fertility clinics:
A fertility clinic, also known as a reproductive or infertility clinic, is a specialised medical facility that provides diagnostic, therapeutic, and reproductive health services to individuals and couples who are experiencing difficulties in achieving pregnancy or managing reproductive health issues.
These clinics offer a range of services related to fertility and reproduction, including but not limited to:
- Diagnosis and Evaluation: Fertility clinics assess and diagnose the underlying causes of infertility or reproductive health problems through various medical tests and examinations.#
- Assisted Reproductive Technologies (ART): Fertility clinics offer treatments such as in vitro fertilization (IVF), intrauterine insemination (IUI), intracytoplasmic sperm injection (ICSI), and other ART procedures to help patients conceive.
- Hormone Therapy: Some clinics provide hormone-based treatments to regulate reproductive hormones and address issues like ovulation disorders.
- Sperm and Egg Banking: Fertility clinics often offer the freezing and storage of sperm, eggs, and embryos for future use.
- Surrogacy and Gestational Carrier Services: Some fertility clinics facilitate surrogacy arrangements and gestational carrier services for individuals or couples who cannot carry a pregnancy themselves.
- Pre-implantation Genetic Testing: Fertility clinics may perform genetic testing on embryos before implantation to screen for genetic disorders.
- Reproductive Surgery: Surgical procedures to correct anatomical issues that may impact fertility, such as fallopian tube surgery or vasectomy reversal.
- Counselling and Support: Many fertility clinics offer psychological and emotional support services for patients dealing with the stress and emotional challenges associated with infertility.
Fertility clinics play a crucial role in helping individuals and couples achieve their reproductive goals by providing a range of medical and technological interventions, as well as emotional support, to address infertility and related issues. These services are typically provided by a team of reproductive endocrinologists, gynaecologists, and other specialists with expertise in fertility and reproductive health.
– Family law lawyers:
Intended parents can involve a family law lawyer to complete the legal work. Their main tasks include writing contracts and negotiating clauses with the surrogate.
Agencies agreements are drafted in compliance with the legal requirements of the child’s birthplace but not with the legal requirements of the intended parent(s) country.
Therefore an international lawyer is compulsory.
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Surrogacy in France
Why is surrogacy prohibited in France?
Surrogacy is prohibited in France under the Bioethics Law of 1994.
This law prohibits all forms of surrogacy, including both traditional and gestational surrogacy.
Traditional surrogacy involves the surrogate mother being genetically related to the child she carries, while gestational surrogacy involves the surrogate mother having no genetic relationship to the child. Both forms of surrogacy are prohibited in France.
The French legal stance on surrogacy is based on several principles, including the belief that the human body should not be used for financial gain, the potential exploitation of women, and concerns about the child being abandoned.
What are the criminal sanctions for surrogacy in France?
In France getting a surrogacy agreement is subject to legal penalties.
Specifically, the first step is the invalidation of the surrogacy contract.
Moreover, engaging in surrogacy in France results in a criminal conviction of 6 months’ prison and a fine of 7,500 euros: “the act of inducing, either for financial gain or through offering, promising, threatening, or abusing authority, parents or one of them to abandon a born or unborn child” (article 227-12 of the French criminal law).
The legal sanctions are even harder for professionals practicing surrogacy.
The penalty is heightened to one year of imprisonment and a fine of 15,000 euros concerning “the act of acting as an intermediary between a person or a couple desiring to welcome a child and a woman agreeing to carry this child with the intention of handing it over” (article 227-12 of the French criminal law).
Finally, under French criminal law, a punishment of five years of prison and a fine of 75,000 euros is imposed for the use of medically assisted procreation techniques contrary to the Public Health Code, particularly in the context of surrogacy, as specified in Article 511-24 of the Penal Code.
What is the French civil law saying regarding surrogacy?
The French Civil Law consolidates the regulations and principles governing French civil law, dating back to Napoleon Bonaparte.
One of its fundamental principles concerns the inviolability of the human body. French civil law explicitly states that “the human body, its components, and its products cannot be subject to property rights” (Article 16-1 of the Civil Code).
Additionally, French Civil Law stipulates the invalidity of contracts between intended parents and surrogate mothers: “Any agreement related to procreation or gestation on behalf of another is considered void” (Article 16-7 of the French Civil Law).
The legal concept of “mother” lacks a precise definition in French law. Indeed, being pregnant and giving birth establishes one as a mother in the context of French law. Regardless of the child’s biological origin and the surrogate mother’s intent to carry the child for someone else, the surrogate mother is legally recognised as the mother of the unborn child.
The amendment to Article 47 of the French Civil Law resulting from the provisions of Law No. 2021-1017 dated August 2, 2021, regarding bioethics, represents a significant development for surrogacy. This amendment now asserts that “any civil status act of French citizens and foreigners conducted in a foreign country and executed in the forms employed in that country is deemed authentic, unless other acts or documents, external data, or elements extracted from the act itself demonstrate, following all necessary verifications, that the act is irregular, falsified, or that the declared facts do not align with reality. This evaluation is conducted in accordance with French law.”
Is there a potential shift for surrogacy in France?
Despite ongoing debates regarding the revision of the bioethics law, surrogacy remains prohibited in France. Nevertheless, there has been a recent evolution in the recognition of children born abroad through gestational surrogacy in French law.
Since 2017, French courts have ceased rejecting requests for the registration of children born by surrogacy in the French civil status registers. It is now established that the existence of a surrogacy agreement between the intended parents and the surrogate mother no longer automatically hinders the transcription of the birth certificate of a child born abroad through such an agreement. This is applicable as long as the birth certificate is not irregular or falsified, and the declared facts align with reality, as per the provisions of article 47 of the Civil Code (1st Civil Chamber, November 29, 2017, appeal no. 16-50061).
Furthermore, since August 2, 2021, a significant development has occurred with the amendment of article 47 of the French Civil Law. This amendment now asserts that any civil status act of French citizens and foreigners conducted in a foreign country and executed in the forms employed in that country is considered authentic. However, this is subject to verification, as other acts, documents, external data, or elements from the act itself may establish irregularities, falsifications, or discrepancies with reality, and such assessments are made under French law.
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Surrogacy in other countries
Which countries prohibit surrogacy?
Several countries either completely prohibit surrogacy or restrict it to varying degrees. Keep in mind that laws and regulations may change, so it’s important to verify the current status. Here are some countries where surrogacy is either prohibited or significantly restricted:
- France: Commercial surrogacy is illegal.
- Germany: Surrogacy is prohibited, and any surrogacy arrangement is considered null and void.
- Italy: Both gestational and traditional surrogacy are illegal. The law does not recognise any surrogacy arrangements.
- Spain: Commercial surrogacy is illegal. Altruistic surrogacy is not explicitly regulated, but the legal status is uncertain, and there are significant restrictions.
- Portugal: Surrogacy, both commercial and altruistic, is illegal. The law does not recognise surrogacy agreements.
- China: Surrogacy is illegal for Chinese citizens, and there are restrictions on foreigners using surrogacy services in the country.
- Turkey: Surrogacy is not legally regulated, but there is a de facto prohibition, and it is generally not practiced.
- Switzerland: Surrogacy is illegal, and the Swiss legal system does not recognise surrogacy agreements.
- Norway: Surrogacy is illegal, and any surrogacy arrangement is not legally recognised.
- United Arab Emirates (UAE): Surrogacy is illegal in most emirates of the UAE, with some exceptions in Dubai where it is tightly regulated.
- Saudi Arabia: Surrogacy is prohibited, and there are legal consequences for those involved.
It’s crucial to note that laws can change, and the legal status of surrogacy in these countries may have evolved since my last update. Additionally, some countries that allow surrogacy may have certain restrictions or requirements in place. Therefore, for the most current and accurate information, it is advisable to consult legal sources or seek advice from legal professionals familiar with the laws of each specific jurisdiction.
Which countries allow surrogacy?
Other countries allow the use of surrogate mothers. To date, these include Denmark, the Netherlands, Russia, Greece, Canada, certain American states, India, etc.
In the UK, surrogacy has been permitted since 1985. The woman giving birth is named as the legal mother on the birth certificate and her partner as the father. The transfer of parentage cannot be carried out before a period of six weeks, during which the surrogate mother can decide to keep the child. The surrogate mother therefore has a “right to repent”. She is the one who makes all the decisions during the pregnancy. But, while affirming that the child does have a filiation link with the intended couple, he suggests that the surrogate mother is also a mother. This right is open to all heterosexual or homosexual couples. Around a hundred surrogacy cases are carried out in Britain each year.
In Greece, upon agreement between the intended parents and the surrogate mother, a legal document records the parentage of the child with regard to the couple who then become the sole legal guardians. It is, in a way, a prenatal adoption of a child of which the adopters would also be the parents. It is therefore the intended couple who makes all decisions during the pregnancy, not the surrogate mother.
In the United States, surrogacy is legally recognized in around twenty states. Surrogacy is a huge business. Since the 1970s, around 25,000 children have been born to surrogate mothers. Surrogacy is expensive in the USA. The remuneration of the surrogate mother is not limited, and prices vary depending on the agencies, paid options, supply, and demand.
In India, the surrogacy industry has been reserved since 2016 for heterosexual couples suffering from infertility and only in an “ethical” way, to protect women. It must be prohibited to foreigners to put an end to the procreative tourism which has taken hold in this country.
What is the surrogacy process?
As surrogacy is prohibited in France, couples must go to a country where surrogacy is legal.
The intended parents have several steps to follow:
- Choosing the country of destination:
Each country has its own legislation and regulations. It is essential to get information to ensure that the circumstances of the intended parents align with the law of this country.
- Choosing a surrogacy agency:
Some surrogacy agencies operate on a partial-service basis, focusing on facilitating matches between surrogates and intended parents without comprehensive support throughout the entire surrogacy journey.
On the other hand, a larger and well-established full-service surrogacy agency can provide a broader range of services. This includes everything from matchmaking to case management and legal assistance, contributing to a smoother and less stressful surrogacy process.
- Selecting a Surrogate Mother
Typically, the surrogacy agency assists intended parents to find a match.
- Drafting the surrogacy Contract
The surrogacy contract outlines the specific terms and conditions agreed upon by the involved parties.
- Undergoing Fertility Treatment
The chosen fertility clinic conducts in vitro fertilization and embryo transfer to the surrogate mother, utilizing eggs and sperm from either donors or the parents themselves.
- Establishing Parental Rights and Registering the Child in the French Civil Status Registers
To be recognized as the legal parents of the child, parents must complete the necessary legal and administrative procedures in both the country of birth and France.
What is the cost for a surrogacy?
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Parental rights with surrogacy
Parental rights of the intended mother
In France, it is very tricky to identify child’s legal parent at birth and transferring parenthood to the intended parents.
In countries where surrogacy is allowed and if you use a surrogate, they will be the child’s legal parent at birth. Legal parenthood can be transferred by parental order or adoption after the child is born.
However, foreign birth certificates transcription in France is very challenging.
France has faced repeated condemnations from the European Court of Human Rights (ECHR) for its disagreement to record the birth certificates of children born abroad through surrogacy in the civil registration, falling under the right to respect for the private life of the children.
Birth certificates transcription in France is still not an automation process.
Indeed, according to French Law, you can not be the child’s legal mother at birth if you didn’t give birth to the child.
Who is the legal father?
If the father is the sperm donor, he will be the legal father of the child. If not, the intended father will be the legal father once the child’s foreign birth certificate is recorded and registered in France.
What are the rights of the intended mother?
According to French Law, you cannot be the child’s legal mother at birth if you didn’t give birth to the child.
Nevertheless, the intended mother can become the legal mother throughout:
- The child’s birth certificate transcription in France
- Adoption
Do intended parents get maternity/paternity leaves with surrogacy?
If the father is the sperm donor, he can get paternity leaves within 4 months after the child’s birth even if the child is born abroad.
The father can get between 25- and 32-days’ paid paternity’s leave.
However, the intended mother as she is not the legal mother of the child she cannot get maternity leaves.
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Our child law articles
Child custody
In France, when a couple is getting a divorce, agreeing on child or children custody is a turning point and disputes raise. In France, couples have 2 options: either they find a joint solution or the family Court Judge will settle the dispute.
Whatever the dispute solution is, parents will have to come to an agreement based on 3 types of custody: “la garde Classique” or flexible custody arrangements in english, “la garde alternée” or joint residency in English et la “garde réduite” or sole custody in English.
Third party and grandparents rights
When families break down, a minor can find himself in a middle of conflicts and distanced from their relatives and siblings such as the grandparents.
Parents have parental responsibility for their child(ren) opposed to grandparents who don’t automatically have parental responsibility and they are referred as third parties.
Child guardianship
In France, guardianship for children is governed by the French Civil Code (Code Civil). Guardianship typically arises in situations where child’s parents are unable to care for them due to various reasons such as death, incapacity, or parental responsibility withdrawal.
Special guardianship is a family court order that places a child or a minor in long-term care with someone other than their parents.