In cases of rent bellies, the father usually contributes his genetic material, but in some countries, his partner (male or female) usually finds problems to legalize his relationship with the baby. France is one of those countries whose legislation is more restrictive in this respect, therefore, the European Court of Human Rights (TEDH) of Strasbourg, consulted by the French judges, has issued its considerations on what to do in these cases. They affirm that the legislation of each country must allow for the "recognition of a legal parental-filial relationship" of the person born of a surrogate mother with her "mother of intention", the woman who will raise them even though she is not her biological mother. This relationship does not have to be recognized by the inscription in the legal records of that woman as "legal mother", given that many countries only consider as such the one that stops the baby.
For Strasbourg, guaranteeing the rights of minors is a priority that is fulfilled if the "mother of intention" is registered as an "adoptive" mother, for example, but each country will have its formulas, so the European court recommends that it be study each file taking into account "the particular circumstances" of each case. The decision released by the court on Wednesday, which is not binding, responds to a query by the French Court of Cassation, although it could have an impact on other countries that are studying how the law should respond to gestations by wombs for rent in the Foreign.
The ECHR has taken four months to present its conclusions. And in these makes clear the difficulty of giving a firm opinion on a subject with many edges. Because on the one hand, the judges of Strasbourg are convinced that "the lack of recognition of a legal relationship between a child born from a rental womb abroad and the mother who will raise it has a negative impact on many aspects of the right to that child's private life. "
But, the magistrates grant, in the context of surrogate pregnancy it is not only about the best interest for born, but there are other factors that "do not necessarily weigh in favor" of legal recognition at any cost of their relationship with the mother of intention . They mention in this sense the question of "protection against the risk of abuse that may be contained in a surrogate pregnancy agreement", as well as "the possibility of knowing their origin" that people have.
After their deliberations, however, the judges conclude that the rights of the child weigh more heavily, and also that "the absolute impossibility of obtaining recognition of this relationship between a child born abroad and the mother abroad. of intention is incompatible with the best interests of the child ". Therefore, they add, although they consider the adoption as a solution valid, they emphasize that, "at a minimum, each situation must be examined in the light of the particular circumstances of the case".
The one that brought France to Strasbourg is that of the Mennesson family, which has already reopened on several occasions throughout Europe the debate on the rights of those born of a rental womb. It is the path chosen by Sylvie and Dominique Mennesson to have their daughters, Fiorella and Valentina, 18 years ago in the United States. France refused to enroll teenage girls in the family book because in the American birth certificate, the Mennessons are the only parents of the girls, Dominique as "genetic father" and Sylvie as "legal mother". But the notion of "legal mother" does not exist as such in French law, which only recognizes the woman who gives birth.
In 2014, the ECHR considered that the refusal of the French authorities to register the daughters of the Mennesson infringed the right to privacy of the minors, guaranteed by Article 8 of the European Convention, since it left them "in a situation of legal uncertainty "that" threatens his identity within the French society ". After that, the French Court of Cassation, which until then refused automatically to register children born by surrogate pregnancy, changed its jurisdiction and began to accept them, but with one caveat: while recognizing the biological father, it does not thus with the mother of intention although the ovules generated by the way of a rent belly come from her (case that does not correspond either to the Mendesson).
The way it left for the new mother to be recognized in the legal documents was that of "the adoption of the child by the wife (or husband, in the case of homosexual couples), of his father." After a new appeal from the Mennessons, who consider that despite this change their daughters could have future problems in issues such as inheritance or succession rights, the Court of Cassation decided to consult Strasbourg if it exceeded imposing these restrictions and if the rights of the child were protected by the formula of adoption currently proposed by French law, which the ECHR has now confirmed.