At the nation's doorstep: the fate of children in France born via surrogacy

Abstract

Surrogacy has been prohibited in France since the Court of Cassation condemned it on the grounds that ‘only merchandise can be the object of contracts’ (in 1991), and decided that ‘any contract concerning procreation or gestation on behalf of a third party is void’ (in 1994). French people who undertake surrogacy abroad act knowingly against French law. Once a child is born through surrogacy on foreign soil, except in rare cases, the birth is not included in the French register and the newborn is thus held at the gates of the national community. Most of these children have a foreign birth certificate and the nationality of their land of birth. This paper presents research currently in progress, and reports on interviews conducted in France with 28 families, 16 of which were formed by gay male couples, 11 by heterosexual couples and one by an unpartnered gay man. One surrogacy arrangement took place in Russia, one in Poland and one in India; the others were completed in North America (mostly in the USA but also in Canada). The research method and the characteristics of the families are described briefly, in addition to the legal, ethical and political context concerning surrogacy in France. The situation of the children born abroad through surrogacy is then analysed, to demonstrate that it is reminiscent of the historical assimilation of filiation with transmission of French nationality, from which children considered illegitimate have been excluded.

Cross-border reproductive care in the USA: who comes, why do they come, what do they purchase?

“…They may be outright ‘prohibited or criminalized’, they may be regulated to the point of essentially making them unavailable, or they may be ‘restricted to certain populations, excluding people on the basis of age, infertility diagnosis, relationship status, and/or sexual orientation’ ( Martin, 2015: 52 ). This can be seen, for example, in France where gamete donation is not available to same-sex couples, who must travel out of the country for such services ( Courduriès, 2018 ). For heterosexual couples in France, oocyte donation is available (and reimburseable) but has been challenging due to the long waiting lists resulting from a ‘shortage of donors and the very small number of French ART centres practicing oocyte donation’ ( Rozee Gomez and de la Rochebrochard, 2013 : 3108).…”

“…Legal restrictions and limited markers in countries of residence ‘push’ people to the USA for reproductive services, while the legal permissiveness in the USA ‘pulls’ them ( Courduriès, 2018 , König, 2018 , Martin, 2015 , Murphy, 2013 , Smietana, 2017 , Stuvoy, 2018 ). The USA is particularly attractive for gay intended fathers able to afford US ART services, for example, as they have very few options in other national markets ( Smietana, 2017 ).…”

“…These wealthy patients/clients use their purchasing power to weigh various national options against each other when choosing where to seek their care ( Speier, 2016 ). Proximity may be a factor (recall that Canada and Mexico are the top sending countries into the USA), together with the legal clarity on US citizenship for children and parental status for intended parents ( Courduriès, 2018 , König, 2018 , Levine et al, 2017 , Smietana, 2017 ). The shutting down of certain ART markets to CBRC clients (such as India and Thailand) directs people to the USA, especially gay men who have few national options outside of the USA ( Jacobson, 2018 , Smietana, 2017 , Stuvoy, 2018 , Whittaker, 2019 ).…”

“…As this article alludes, CBRC into the USA raises important areas of concern, including citizenship, legal documentation, stratification enabled via racialized global markets, and border-crossing issues for children born in nations other than those in which they are being raised. These are serious issues; for example, in France, where opposition to surrogacy is strong and the majority of ‘children born abroad by surrogacy are denied French civil status, and there are delays in the issuing of certificates of French nationality’, these issues create both travel and inheritance challenges for these children ( Courduriès, 2018: 48 ). Particularly now, during the Trump era and the COVID-19 global pandemic, in which international travel, border crossing and birthright citizenship are increasingly problematized, CBRC into the USA is situated as a particularly interesting (if not fraught) area for future research.…”

“…They may be outright 'prohibited or criminalized', they may be regulated to the point of essentially making them unavailable, or they may be 'restricted to certain populations, excluding people on the basis of age, infertility diagnosis, relationship status, and/or sexual orientation' (Martin, 2015: 52). This can be seen, for example, in France where gamete donation is not available to same-sex couples, who must travel out of the country for such services (Courduriès, 2018 is alleviated by US legal clarity. These men chose costly US CBRC surrogacy over domestically available surrogacy, highlighting the ways in which the decisions foreign CBRC patients/clients make to pursue parenthood in the US ART market can be shaped by factors outside of (perhaps irrelative to?)…”