A random but serious post on the complexities of legal parentage.
This came about after studying material on family law and civil status and subsequently having a random conversation with a Chinese lesbian about Chinese laws surrounding surrogacy, which is banned in all forms in China.
Freedom of movement now (COVID aside) enables many people, both mixed-sex and same-sex, to engage in 'procreative travel' for assisted reproductive technology (ART) procedures and surrogacy. As a result, couples may face uncertainty about their status as parents of children to whom they have through ART, or to whom they are not genetically related, or they have adopted through second parent adoption abroad.
This is a relatively less talked about area of family planning and the laws on parentage do not match up internationally, but France offers an example of the complexity, or otherwise for just interesting reading, hopefully.
In 2013, France braced itself for a weekend of mass protests against gay marriage and adoption. Belgium had become a haven for French lesbians who flocked there in their thousands to conceive babies they were not allowed to have at home. At the time it was thought that about 2,000 babies conceived in Belgium through artificial insemination by a donor were born each year to French lesbian couples, who were not eligible to undergo the procedure in France. The children conceived in this way were called “Thalys babies" after the high-speed train service between Brussels and Paris on which their mothers embarked back and forth on a long, difficult and sometimes painful journey, sometimes for years, in their quest to become parents.
Same-sex couples were not permitted to receive ART, but, in order for single parents to provide their child with a second parent when the other original parent was unknown or deceased, a 2013 Act of the Cour de Cassation (the highest court of civil appeal) allowed a new spouse to adopt a stepchild. The adoption procedure was also used by a number of women in situations where the father was not known, including Thalys Babies from Belgium.
By July 2014, almost 300 applications for adoption had apparently been filed in different courts in France, and the reaction and interpretation of the law in different courts was very varied. On 22 September 2014, however, the Cour de Cassation found that:
'Resorting to MAP [medically assisted procreation], in the form of artificial insemination with an anonymous donor abroad, does not bar the mother’s wife from adopting the child born from this procreation, provided that the legal conditions of the adoption are fulfilled and that it is in the child’s interests'.
The UK provides a legal framework for known and anonymous donor conceptions but the law is complex and currently beyond my scope of knowledge.
Residents in or nationals of a country (often referred to as ‘intending parents’) with strict limits may ask women in more liberal jurisdictions to carry a child for them, i.e., surrogacy. Once the baby is born, they will want to return to their home country and/or register the birth there.
Surrogacy arrangements are prohibited in some states, permitted in other states and unregulated in others. Depending on the approach to surrogacy in their home state, the couples concerned may face difficulties in establishing their legal parentage, which has consequences in a number of areas of law, including succession and taxation.
As you can imagine, this is very much an ever-evolving area of practice. In cases of surrogacy, the legal parental status of the intending parents may not be secured, depending on where in the world they are. Specialist advice is needed, and specialist Wills for surrogacy, donor conception and assisted reproduction would be recommended.