Henri Capitant Law Review (English)

Yearbook of French Law 2014

1 - Law of Persons - Astrid Marais

2014 should have been the year for law of persons. Indeed, after the revolution of 17 May 2013 which introduced same-sex marriage into family law, we expected the lawmaker to take an interest, inter alia, in its potential impacts. Following authorisation for persons of the same sex to adopt, wouldn't the way to artificial reproduction also be opened? The discussion was announced and should have been held before Parliament. But it wasn't. So, the judges stepped in. This year, they often called the tune on both essential and existential issues that concern human beings at every stage in life, from procreation to death.  

I. Procreation

1.   Surrogacy. Under French law, surrogacy agreements whereby a woman agrees to carry a child in order to give him to the commissioning couple at birth are absolutely null and void (Art. 16-7 and 16-9 of the French Civil Code (code civil)). This public-policy prohibition is based on the principles of unavailability of the human body and civil status, and on that of dignity. To circumvent it, couples desperate to have a child travel to countries where surrogacy is permitted. However, upon returning to France with the child, they could not have the child's foreign birth certificate, establishing them as father or mother, entered on the French civil register. The Court of Cassation denied any such application without, according to it, interfering with the children's right to respect for private and family life where the cancellation of the entry did not deprive "the children of the maternal and paternal parentage that (foreign) law recognises/ed nor does/did it prevent them from living" with the commissioning couple (Cass. Civ. 1, 6 April 2011, no. 10-19.053, 09-66.486, 09-17.130). Successively based on public policy and then on breach of law (Cass. Civ. 1, 13 Sept. 2013, no. 12-30.138. 12-18.315; Civ. 1, 19 March 2014, no. 13-50.005), this solution was strictly applied, without regard for the possible biological relationship between the child and one of the "intended parents".

            The courts' position has been condemned by the European Court of Human Rights(ECtHR, 26 June 2014, Mennesson v France, App. no. 65192/11 and Labassée v France, App. No 65941/11) on the ground that it infringed the children's right to respect for private life (and not that of the "intended parents") by interfering with their identity in French society. The Strasbourg Court, while recognising the existence of a wide margin of appreciation for Member States in their choices on surrogacy, decided to limit its scope when, as in this case, it concerns the child's parentage. In France, the prohibition of surrogacy can be maintained, but the refusal to recognise the parentage between a child born to a surrogate and his/her biological parent may not. According to the Court, "Given the importance of biological parentage as a component of each individual’s identity, it could not be said to be in the best interests of the child to deprive him or her of a legal tie of this nature when the biological reality of that tie was established and the child and the parent concerned sought its full recognition."

            Based on this judgment, the Council of State (12 December 2014, Juristes pour l’enfance et autres association, no. 367324, 366989, 366710, 365779, 367317, 368861)validated the Taubira circular of 25 January 2013 on the issuance of French citizenship certificates (BOMJ, 31 Jan. 2013 JUSC1301528C), pursuant to which children born abroad should not be denied French nationality on the sole ground that they were born to a surrogate mother, when one of the commissioning parents was French. According to the Council of State, "the mere fact that the birth of a child abroad stems from a contract that is void under French public policy cannot result in depriving the child of the French nationality to which s/he is entitled under Article 18 of the French Civil Code and under the control of judicial authority, when his/her parentage with a French individual is established, without disproportionately interfering with the nationality implications of the child's right to respect for private life, as guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms." Granting nationality on the basis of Article 18 of the French Civil Code requires the existence of a parentage relationship, duly established and recognised in France, between the child and a French individual. The Taubira circular circumvented this question which fell -and still falls- within the jurisdiction of the judicial courts, the latter then refusing to recognise such a relationship. But, as we know, this refusal was condemned by the Strasbourg Court. We shall simply note that, held on the basis of Article 18, the debate on the nationality of children born to a surrogate mother was skewed. It mistakenly suggests that, without parentage, the child is necessarily deprived of French nationality. However, under Article 21-12 of the French Civil Code, any child who for at least five years has been given a home and brought up in France by a person of French nationality, may claim French nationality.

            If the lawmaker does not take action (and we can but regret his silence on such key issues), the judicial court will thus have to determine whether, and to what extent, the parentage of a child born to a surrogate mother must be recognised with his/her French "intended parents". Will the latter have to use "gratuitous surrogacy" and/or have a genetic link with the child? The question will soon be settled by the European Court of Human Rights to which three cases of "surrogacy for consideration" involving French couples who used the services of surrogates in Ukraine and India have been referred (Laborie et autres v France, App. no. 44024/13, Foulon v France, App. no. 9063/14 and Bouvet v France, App. no. 10410/14).

            The ECtHR has already stated, in the Paradiso and Campanelli v Italy ruling of 27 January 2015 (App. no. 25358/12), that the absence of any biological link between the child and the intended parents did not prevent recognition of the existence of a family. In this case, an Italian couple travelled to Russia to use the paid services of a surrogate mother (the price is not disclosed but payment of a surrogate in Russia ranges between €15,000 and €30,000). Contrary to what was agreed, the child was not conceived with the husband's sperm. Six months after they arrived back in Italy, the Italian courts withdrew the child from the commissioning couple, deeming their emotional and educational abilities doubtful on the ground that the child was conceived to satisfy a "narcissistic desire of the couple or was intended to solve the couple's problems". The European Court condemned Italy for breaching the couple's right to respect for private and family life. Despite the absence of any biological link and the short time for which the couple had lived with the child, the Court considered that the couple had behaved as parents towards the child and concluded that a family life existed between them. They should only have lost custody of the child if he was exposed to violence or abuse. This child must not "be disadvantaged on account of the fact that he or she was born to a surrogate mother, beginning with citizenship or identity." Yet, the European Court did not order that the child be returned to the couple on the ground that "the child had no doubt developed emotional ties with the foster family with whom he had been placed at the start of 2013 (after the couple lost custody of the child) ". Therefore, the child's parentage with the commissioning couple will not be established. However, Italy will pay the applicants €20,000 to compensate for their nonpecuniary damage.

            By condemning a State that sought to enforce the prohibition on surrogacy, the European Court contributes to the liberalisation of the reproduction market: it completely shatters all legislation prohibiting such a practice.  

            Salvation could come from a law dissuading couples from entering into a surrogacy arrangement. In France, a private member’s bill was tabled by J. Leonetti to sanction French people going abroad to have recourse to surrogacy ("Proposition de loi visant à lutter contre les démarches engagées par des Français pour obtenir une gestation pour autrui", French National Assembly, no. 2277, 14 October 2014). It did not pass its first reading by the National Assembly on 4 December 2014. It is true that sentencing commissioning couples to prison is probably not the most appropriate penalty if the child is born... Today, the most effective solution is provided by countries which, while authorising the use of surrogacy on their territory, prohibit it for foreign couples. Thus, in Thailand, after an Australian couple refused, in August 2014, to "take delivery" of a Down's syndrome child born to a Thai surrogate, but nonetheless took the non-Down's twin, a Law of 20 February 2015 now prohibits foreigners from having recourse to this method (Courrier International, 21 February 2015).  The aim is "to prevent Thai women's wombs from becoming the womb of the world" (W. Tankananura, Assembly Member, quoted by Courrier International).

            In future, medical progress could limit the attraction of surrogacy for women who do not have a womb. Indeed, the first womb transplant, carried out in Sweden from a living (post-menopausal) donor enabled a woman born without a uterus to have a child (Le Point, 16 Oct. 2014). In France, two research protocols are pending authorisation: they involve using the womb of living or deceased donors for the length of pregnancy.

2. Donor insemination of a lesbian woman.Currently, donor insemination or artificial insemination by donor (AID) is not available to same-sex couples and single people (Art. L. 2141-2 of the French Public Health Code (code de la santé publique)). To get round the prohibition, lesbian women resort to AID abroad. In France, the establishment of maternal parentage between the child and the woman who gave birth does not raise any difficulty (the mother is the woman who gives birth). By contrast, the adoption of the child by the mother's wife, authorised by Law no. 2013-404 of 17 May 2013 for married couples, has led to diverging solutions when the child was born following AID carried out abroad. Some trial judges have barred it for evading French law, on grounds that adoption was the final step in a global process seeking to circumvent French law on medically assisted reproduction (in part. TGI (Court of first instance) Versailles, 29 April 2014, no. 13/00013, no. 13/00113 and no. 13/00168). Other judges, however, readily accept such an adoption (in part. TGI Nanterre, 8 July2014, no. 13/14803 and no. 13/14804). The Court of Cassation, referred to for opinion, considered on 22 September 2014 (no. 14-70.006 and no. 14-70.007) that "use of assisted reproductive technology, in the form of artificial insemination with an anonymous donor abroad, does not prevent adoption by the wife of the child's mother, where the legal conditions of adoption are met and it is consistent with the interests of the child". It set aside the solution based on evasion of French law because, unlike surrogacy, the practice of AID is authorised in France. The fact that it is used abroad does not therefore breach any fundamental principle of French law (press release).

3. Conception of an embryo by three people? In February 2015, in England, an embryo was conceived with two eggs: the genetic base of the future mother's egg was integrated into the "healthy" egg of a donor, without the genes of the disease she could transmit to the embryo. In France, Article 16-4 of the French Civil Code prohibits such a practice for medical purposes. It is indeed a germline gene therapy which alters "genetic characters with the aim of changing the descent of a person." However, this prohibition does not prevent "research aiming to prevent and treat genetic diseases." So, if such research demonstrated the advantages of germline gene therapy, the lawmaker has reserved the right to authorise it for medical purposes, when revising laws on bioethics.

II. Birth.

4. To be born or not to be born. Since Law no. 2014-873 of 4 August 2014 for real equality between women and men, women are entitled to have a pregnancy terminated without having to demonstrate "distress" as was previously the case. The removal of the condition of distress, which was solely appreciated by the woman, does not change anything in practice.

5.Human beings and animals. Once he has been born alive and viable, a child becomes a person, unlike animals. The Law no. 2015-177 of 16 February 2015 on the modernisation and simplification of law and proceedings in the areas of justice and home affairs did not call into question the distinction between individuals and animals, by stating in Article 515-14 of the French Civil Code that "animals are living beings capable of sensitivity. Subject to the laws that protect them, animals are subject to property law." Indeed, among living beings, animals are not recognised as having personality: even though they are considered sentient beings, the law applicable to them is that of property, not people.

6. Birth of a child to a public figure: private or public life?In settling a dispute between the right to respect for private life and freedom of expression, the Court of Cassation had made a distinction to determine whether the birth of a child to a public figure could be announced without his consent. It had ruled in favour of private life when the child's birth did not have any political or dynastic consequences (Cass. Civ. 1, 27 Feb 2007, no. 06-10.393), while, otherwise, it gave priority to freedom of expression and authorised disclosure of the event without the parent's consent (Cass. Civ. 2, 19 February 2004, no. 02-11.122). For now, this distinction has not found favour with the European Court (ECtHR, 12 June 2014, Couderc et Hachette Filipacchi Associés v France, App. no. 40454). France was indeed criticised in a case where the Court of Cassation had held the revelation of a natural child born to a prince to be an invasion of a public figure's private life and not justified by current affairs or a debate of general interest, on grounds that, being born out of wedlock, the child could never accede to the throne. The ECtHR found that freedom of expression should have prevailed as "the Prince’s behaviour could be an indicator of both his personality and ability to perform his functions properly" and the interview had been initiated by the child's mother. Confronted with freedom of expression, the right to respect for private life of people holding public office thus shrinks away. The Court asserted that "whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures." This ruling has been referred to the Grand Chamber at the French government's request.  

III. Living.

From birth, each individual holds rights that allow him to require others to respect the different aspects of his personality.

7. Gender reassignment and remaining married.When a transsexual has succeeded in France in obtaining gender reassignment, subject to the dual condition of establishing "the reality of the transsexual syndrome" and the "irreversible transformation of his/her appearance" (Cass. Civ. 1, 7 June 2012, no. 10-26.947 and no. 11-22.490, and Civ. 1, 13 Feb. 2013, no. 11-14.515 and no. 12-11.949), his marriage entered into before the gender reassignment will now no longer be invalid thanks to Law no. 2013-404 of 17 May 2013 which authorised marriage between people of the same sex. A transsexual may now remain married to a person of the same legal gender as him. In Finland, legal gender reassignment is contingent upon the transsexual's earlier marriage being converted into a civil partnership. The Grand Chamber of the European Court of Human Rights confirmed that this requirement does not infringe the applicant's right to respect for private life (ECtHR, Hämäläinen v Finland, 13 November 2012, App. no. 37359/03 and 16 July 2014, App. no. 37359/09).  

8. Undressing to go out? Clothes are a way of asserting one's personality and, for example, one's religious beliefs. However, since Law no. 2010-1192 of 11 October 2010 prohibiting the concealment of the face in public places, individuals may not completely hide their face in a public place as it prevents them from being identified by others. Such concealment is now prohibited in the name of a renewed conception of public order, no longer confined to preserving tranquillity, public health and safety, whereby behaviours "incompatible with the fundamental requirements of 'living together' in French society" may be banned. (Explanatory memorandum of the government bill). On 1 July 2014, the ECtHR agreed to take this new approach to public order into consideration, emphasising that preserving the conditions of "living together" was a legitimate aim of restricting religious freedom (ECtHR, S.A.S. v France, 1 July 2014, App. no. 43835/11). Even when the garment does not hide the entire face, its wearing may be limited in national primary and secondary schools where it aims to "ostensibly" manifest a religious affiliation (L. 141-5-1 of the French Education Code (code de l’éducation)). Secularism must thus be enforced. As such requirement of secularism does not apply in private relationships, the question arose as to whether an employer could restrict the religious freedom of his employees by prohibiting them to wear such a sign. On 25 June 2014, the Plenary Session (Baby-Loup case, no. 13-28.369) answered that it could, provided that the restriction on the freedom to manifest one's religion, as stipulated in the policy rules, is not general in nature and is "sufficiently precise, justified by the nature of the task to be performed by the employees [...] and proportionate to the aim pursued". It thus legitimised a ban on wearing the Islamic veil imposed by an association on its employees, as the association was a small day nursery with eighteen salaried employees who were or could be in direct contact with children and their parents.

Conversely, one may have to put clothes on to go out. This is the lesson learnt from the judgment of the ECtHR, on 28 October 2014, (Gough v United-Kingdom, App. no. 49327/11, in English). The British courts had ordered criminal penalties against a man called "the naked rambler" who went out walking undressed to express his opinion on the inoffensiveness of the human body. While considering that such conduct did fall within the ambit of freedom of expression, as protected by Article 10 of the ECtHR, the European Court held the repressive measures to be justified because the applicant's behaviour interfered with public order.  

9."Can we (still) laugh at everything?" (Cabu). Freedom of expression and its counterpart, humour, have limits. In an ordinance of 9 January 2014 (ordinance no. 374508), the Council of State, to prevent the holding of Dieudonné's shows, relied on the possible disturbance of public order, as a result of his failure to respect human dignity. The show included "anti-Semitic remarks inciting racial hatred" and tried to "justify the [...] exterminations committed during World War II." This preventive measure, which results in banning a show, should only be very rare in view of its interference with freedom of expression. Moreover, in a different context and one month after the attacks on Charlie Hebdo, another show by the same "comedian" was not suspended by the Council of State which judged the ban disproportionate because public order could be ensured by other means (ordinance of 6 February 2015, no. 387726). In any event, if anti-Semitic remarks were made during the show, Article 33 of the Law of 29 July 1881 on the freedom of the press would apply to repress "with six months' imprisonment and a €22,500 fine any insult of (...) a person or group of persons owing to their origin or their belonging or non-belonging to a given ethnic group, nation, race or religion." The difficulty lies in knowing the limits not to cross. Beyond those limits, humour becomes an insult, and within them, repression is considered censorship. The judgment of the Paris Criminal Court on 22 March 2007 in the case of a caricature of Mohammed published by Charlie Hebdo thus held that the acceptable limits of freedom of expression had not been exceeded because "despite the shocking -or even hurtful- nature of this caricature for Muslims, the context and circumstances of its publication in the newspaper Charlie Hebdo do not appear to include any deliberate intent to directly and freely offend all Muslims."

10. Forgetting.Because digital lockers containing an individual's most personal data can be created with the internet, it seems appropriate to protect the individual by freeing him of a past he would like to forget and have forgotten, in the name of the right to respect for private life and the right to personal data protection. In an order of 13 May 2014, the Court of Justice of the European Union (CJEU) thus required Google to remove from the Web information about an individual whose debt collection by creditors had, several years ago, led to the auction sale of one of his properties (CJEU, 13 May 2014, Google Spain Sl, Google Inc. vAgencia Espanola de Proteccion de Datos (AEPD), Mario Costeja Gonzalez,C-131/12). According to the Court, the rights of people to request the removal of personal information "override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name." It will be different if, for particular reasons relating in particular to the "role played by the data subject in public life", the interest of the public in having access to such information prevailed.

            The right to erase information from a police file, when the charges have been dropped, is also linked to the need to guarantee a right to be forgotten. The European Court thus condemned France for permitting such data to be kept in the STIC (an information processing system, now replaced by the TAJ (a criminal record processing system)) for 20 years. Although these files pursue a legitimate aim of defending order, the data retention period is excessive. Therefore, France disproportionately interfered with the applicant's right to respect for private life (ECtHR, 18 September 2014, Brunet v France, App. no. 21010/10).  

IV. Death.

a. Dignity in death.

11.Allowing to die. In French law, Law no. 2005-370 of 22 April 2005 relating to patients' rights and end of life, known as the Leonetti Law, authorises doctors to let patients die, by withdrawing treatments that result from unreasonable obstinacy. Relentless treatment is thus denied. When the patient is unconscious, the decision to withdraw and limit treatments must be made collectively by a medical team. The doctor must also consult the patient's person of trust, family or, failing that, someone close to the patient. He may also refer to the "advance directives", a sort of will written by the patient. The difficulty arises when the relatives disagree as to whether the patient's treatment should or should not be stopped. Such a family dispute, which gave rise to the Lambert case, had to be settled by the Council of State in a decision handed down on 24 June 2014 (Mme F...I... et autres, no. 375081, 375090, 375091). The patient, in a chronic vegetative state, was kept alive by artificial feeding and hydration. At the end of the collective procedure, in which the patient's wife took part, the doctor decided to stop the treatment. The patient's parents objected and took the matter to the court which suspended application of the decision. The Council of State requested a medical assessment and subsequently decided to end the suspension. It considered that withdrawing the patient's artificial nutrition and hydration was a decision putting an end to care which resulted solely in artificially prolonging life and which, if continued, would be unreasonable obstinacy. To do so, it examined the patient's particular circumstances based on medical information which showed the damage to be irreversible and his mental clarity impaired. In addition, even though he had not left any written advance directives, the patient had clearly expressed his wish not to be kept artificially alive before his accident. But the Council of State's decision was not applied: on 23 June, the European Court of Human Rights, to which his parents referred the matter, suspended its execution by way of provisional measures (Article 39 of the Rules of Court), until the Court had ruled on the issue (Lambert et autres v France, App. no. 46043/14).

12. Causing to die.The law prohibits administration of deadly substances by a doctor in order to cause their patients to die. It does not therefore permit euthanasia. But, to ensure that a patient lives the end of his/her life in dignity, this does not prevent him from receiving palliative care to prevent suffering, with side effects which can hasten death (L. 1110-5 of the French Public Health Code). The general public, and even professionals, are not always aware of these provisions (CCNE Report on the public debate concerning end-of-life care, 23 October 2014). The lawmaker has proposed remedying the ineffectiveness of the law caused by such unawareness, by adopting a new law... which is however still not clear. A private member’s bill adopted by the National Assembly is paving the way to legalising euthanasia (Proposition de loi créant de nouveaux droits en faveur des malades et des personnes en fin de vie (Bill creating new rights for sick people and people at the end of their life), National Assembly, no. 2515, 21 January 2015; Senate, no. 348, 17 March 2015, following the report presented to the President of the Republic on 12 December 2014 by MPs A. Clayes and J. Leonetti). It provides for "continuous deep sedation" at the request of a patient suffering from a serious and incurable condition who wishes to "avoid all suffering" and "not unnecessarily prolong his life" in two cases: on the one hand, "when the condition is life-threatening in the short term" and when the patient's "suffering does not respond to treatment", and on the other hand, "when the patient's decision (...) to stop treatment compromises his life in the short term" (draft art. L.1110-5-2).  

b. Dignity after death.

13. The exhibition "Our Body" – which featured human corpses – was banned on the grounds that, as it pursued a commercial aim, it infringed the requirement of respect for the body after death laid down by Article 16-1-1 of the French Civil Code (Cass. Civ. 1, 16 Sept. 2010, no. 09-67.456). This article, which comes from Law no. 2008-1350 of 19 December 2008, was not applicable to the insurance contract taken out on 7 November 2008 to cover the consequences of a cancellation of the exhibition. On 29 October 2014, the Court of Cassation nonetheless declared the insurance policy void, owing to the illegality of its cause, since the "public-policy principle whereby the respect owed to the human body does not stop with death, existed before (the new law)" (Cass. Civ. 1, 29 October 2014, no. 13-19.729). 

Marie-Elodie ANCEL

  • Job: Professeur à l’UPEC, Université Paris-Est Créteil
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Laurent AYNES

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Christine BIQUET

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Pascale BLOCH

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Mircea BOB

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Marie GORE

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  • Job: Professeur à l’Université Panthéon-Assas, Paris II
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Thibault MASSART

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  • Job: Maître de conférences à l'Académie juridique de l'Etat de l'Oural, Russie
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Soo-Gon PARK

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