Recent Court Cases Highlight the Difficult Questions Related to Medically Assisted Procreation in France


Law No.2013-404 dated May 17, 2013, (the Law) allowed same-sex couples to get married and to adopt children, through either the mutual adoption of a child or the adoption of the same-sex spouse’s biological or adopted child. However, same-sex couples are still denied the right to resort to medically assisted procreation (MAP) and gestational surrogacy. This situation is further complicated by the fact that some French courts have permitted the adoption of children born through MAP by same-sex couples, while other courts refused to do so, thereby creating a patchwork of inconsistent legal situations, leading to frustration and growing debates on this topic.

Introduction -

In the spring of 2013, France tackled and ultimately permitted same-sex couples to marry and to adopt children. Yet the Law paved only a partial road to equality for same-sex couples. While the Law addressed some parenting rights for same-sex couples, it did not address avenues for MAP for lesbian couples, which entails clinical and biological methods that are used to achieve pregnancy by artificial or partially artificial means. This was due, in part, to the split in public opinion, which suggested that France was not ready to permit such options for lesbian couples, fearing that it would become the proverbial slippery slope and ultimately open the door for gestational surrogacy. Gestational surrogacy involves an arrangement with a woman unrelated to the couple, the surrogate, who then carries to term a fertilized embryo formed from another woman’s egg, and is expected to release the child to the genetic parent upon delivery. As discussed further in this article, MAP and gestational surrogacy, as avenues to the creation of families for same-sex spouses, remain prohibited.

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