Case of Foulon and Bouvet v France (Application No’s 9063/14 and 10410/14) (21 July 2016)
The European Court of Human Rights (the Court) has delivered a judgment protecting the rights of children born as a result of international commercial surrogacy to have their relationships with their biological parents legally recognised. The Court unanimously found that refusal by French authorities to transcribe the birth certificates of children born under surrogacy agreements in India violated the children's right to respect for private life under Article 8 of the European Convention on Human Rights (the Convention). The judgment resolves past uncertainty as to whether the Court's earlier decisions on surrogacy would extend to same-sex families.
The applicants were Mr Didier Foulon and his daughter, Ms Emilie Sanja Lauriane Foulon in the first case, and Mr Philippe Bouvet and his twin sons, Adrien and Romain Bouvet in the second case. Both Mr Foulon and Mr Bouvet were French nationals whose applicant children were born in India under surrogacy agreements, a practice prohibited in France by Article 16-7 of the French Civil Code. While each of the applicants were issued with birth certificates in India as evidence of paternity, French authorities refused to recognise these as they suspected surrogacy agreements were entered into internationally which are illegal in France.
Decisions of the French courts
In both cases, the applicants were initially successful in applying to French regional courts to have the birth certificates recognised. In both cases, the Nantes Regional Court found that paternity was established on the basis of the foreign birth certificates and there was insufficient evidence regarding the surrogacy agreements.
The decisions at first instance were appealed by the French public prosecutor. In both cases, the Rennes Court of Appeal found sufficient evidence that surrogacy agreements had been used, however the consequences of this finding differed in each case. In the Foulon case, the Rennes Court of Appeal characterised surrogacy as the purchase of a child (d’un achat d’enfant) and held that recognition of Mr Foulon's paternity would be against public policy. In the Bouvet case, however, the Rennes Court of Appeal held that although the surrogacy agreement was illegal, the birth certificate was nonetheless evidence of paternity and should be recognised in accordance with Article 47 of the French Civil Code which imposes a general obligation to recognise foreign documents.
Both cases were appealed to the French Court of Cassation. Mr Foulon argued that by not characterising its decision in terms of the best interests of the child, the Rennes Court of Appeal had violated Article 3-1 of the International Convention on the Rights of the Child and Article 8 of the Convention. The Court of Cassation rejected the argument, holding that the conventions could not be usefully invoked because of Mr Foulon's attempt to evade French law (fraude à la loi française) and that French authorities were permitted under the French Civil Code to refuse to recognise birth certificates where illegal surrogacy agreements had been used. Applying this reasoning to the Bouvet case, the earlier decisions were overturned and recognition of Mr Bouvet's parentage was cancelled.
Previous decisions of the European Court of Human Rights on surrogacy
This case follows a series of surrogacy cases judged by the Court in recent years, the others being Mennesson and others v France (Application No 65192/11), Labassee v France (Application No 65941/11), Paradiso and Campanelli v Italy (Application No 25358/12), D and others v Belgium (Application No 29176/13), and Laborie v France (Application No 44024/13). In each of these cases, applicants relied on Article 8 of the Convention to challenge administrative decisions in their home states refusing to legally recognise parent-child relationships established abroad between children born as a result of surrogacy.
Article 8 of the Convention provides a right to respect for private and family life. It states:
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
In past surrogacy cases, the Court has distinguished between the right to respect for private life and the right to respect for family life. This distinction was particularly important in the Mennesson and Labassee cases, which concerned the refusal by French authorities to recognise birth certificates of children born in the United States under surrogacy agreements. In those cases, the Court found that refusing to recognise the parent-child relationship negatively impacts a fundamental element of a child's private life, being the ability to form an identity, and thereby violated Article 8 of the Convention. However, applying a proportionality analysis, the Court held that there had been no violation of the right to respect for family life as the lack of legal recognition of the parent-child relationship did not disproportionally affect the applicants' ability to enjoy their family life in a practical sense.
Grounds for appeal to the Court
In submitting queries to the Court, the applicants relied on Article 8 of the Convention, alleging that by failing to recognise the birth certificates in France, French authorities had breached the right to respect for the private life of the children and the right to respect for family life of each applicant. Given the similar fact scenarios of each case, the Court considered the two cases together.
The Court found that the situation of the applicants was similar to that of the applicants in the Mennesson and Labassee cases and found no reason to deviate from its past reasoning. The Court found that a violation of the right to respect for private life of the children had occurred, but that no violation of the right to respect for family life was established on the facts.
The applicant children were awarded EUR 5,000 each for moral damages, and Mr Foulon and Mr Bouvet were each awarded EUR 15,000 for costs and expenses.
At the core of the Court's reasoning is the principle that where a child is concerned, the best interests of that child must be paramount. While the Court continues to recognise the margin of appreciation of Member States to prohibit surrogacy agreements domestically, this decision limits the legal effect of such prohibitions where commercial surrogacy occurs abroad. While a State may prohibit surrogacy agreements, once a child is born through surrogacy, the State's laws cannot be used to prejudice the rights of the child.
While the decision applies the Court's earlier reasoning on surrogacy to a same-sex family for the first time, the applicants in each case were nevertheless the biological parents of the children and the birth certificates in each case listed the surrogate as the mother. It remains to be seen whether, where a birth certificate lists two persons of the same sex as the legal parents (as opposed to biological parents), non-recognition of these relationships would constitute a violation of the Convention.
The full text of the decision can be found here (French only).
Dale Straughen is a Lawyer at Allens.