The Court of Appeal in Rennes, France, has upheld an earlier decision to accord civil status - similar to nationality - to twins carried by a surrogate mother in India for a French couple.
The decision is in marked contrast to that arrived at in a separate case less than a year ago by the French Supreme Court (reported in BioNews 604). There, twins born via a surrogate mother in the US were denied civil status. Surrogacy is illegal in France and the Supreme Court's decision further confirmed that surrogacy agreements made abroad would not be recognised.
But the Court of Appeal in Rennes arrived at a different interpretation of the law. In a statement explaining their decision, the judges said that although they could not validate the surrogacy agreement, they could nonetheless accord civil status to the children as they would be acting in accordance with article 47 of the French civil code. Article 47 stipulates that 'any act of civil status for French or foreign citizens made in a foreign country and written on the relevant documents should be upheld'.
Lawyers acting for the commissioning parents in last year's Supreme Court case had invoked article 47, but to no avail.
Caroline Mécary, the lawyer acting for the parents in the current case, said that the Court of Appeal's statement represented 'considerable progress when one considers the elements that certain tribunals feel obliged to include [in their judgments] despite the request they are considering being only concerned with an act of civil status'.
She added her approval that the decision 'was free of value judgments' and in the best interests of the children.
The decision upholds the judgment of the local civil court in Nantes in March 2011 where judges referenced the United Nations Convention on the Rights of the Child to insist that the interests of the children should be paramount in such cases.
For the parents of the twins, who have remained anonymous, the legal wrangling may not yet be over. The French director of public prosecutions could still take the case to the Supreme Court. Any decision to do so had not been announced at time of going to press.