Homoparentality: adoption, assisted reproduction, surrogacy… What the law says

According to figures put forward by the Association of Gay and Lesbian Parents and Future Parents (APGL) in 2018, there are 200 to 000 children raised by at least one homosexual parent in France. While most of these same-sex families live with a child from a previous union, others plan to adopt or start a family using assisted reproduction (ART) or surrogacy (Surrogacy).

On September 25, 2018, Ifop published the results of a survey assessing the desire for children of LGBT (lesbian-gay-bisexual-transexual) people, carried out for the Association of Homoparental Families (ADFP). Carried out among 994 homosexual, bisexual or transexual people, the survey revealed that in France, 52% of LGBT people say they want to have children in their lifetime. To do this, same-sex couples are considering both adoption and recourse to assisted reproduction or surrogacy, the access rules for which were modified by the bioethics bill, adopted by the National Assembly on June 29. 2021. Who has access to these means to start a family? How do these approaches translate in terms of parenthood and the legal status of homosexual parents? Our detailed responses.

Adoption for same-sex couples: tricky in practice

According to article 346 of the French Civil Code, “no one can be adopted by more than one person, except by two spouses”. Since the opening of civil marriage to same-sex couples, a law adopted and published in the Official Journal on May 18, 2013, same-sex married couples therefore have the right to resort to adoption.

Before the reform, or in the absence of marriage, it was possible for them to adopt as a single person, but not as a couple recognized as such.

A child adopted by a same-sex married couple is therefore legally two dads or two mothers, with clearly established parentage, and shared parental authority.

Unfortunately, in reality, it remains difficult for same-sex couples to adopt a child, if only because of the refusal of many countries to allow them to adopt.

If a homosexual couple is not married, one of the two partners can apply for adoption as a single person. He will then be the only one recognized as adopting parent and therefore holder of theparental authority. Once married, the spouse will be able to apply for the adoption of his / her spouse’s child.

Note that ‘marriage for all’ has not erased the biological reality: when a child already has an established maternal or paternal affiliation, no other maternity or paternity link can be established except through adoption.

In legal terms, there are two types of adoption:

• full adoption, which confers on the child a filiation which replaces his original filiation, his biological filiation;
• l’adoption simple, which does not erase the biological parents of the child.

Homoparentality and assisted reproduction: advances in the bioethics law of June 2021

La PMA for all, that is to say no longer only reserved for heterosexual women but extended to single women or in a relationship with a woman, was a campaign promise by candidate Macron, and was adopted on Tuesday, June 29, 2021 at the National Assembly. After twenty-two months of discussion, single women and female couples therefore have access to assisted reproduction.

PMA will be reimbursed by Social Security to single women and female couples in the same way as heterosexual couples and the same age criteria should be applied. A specific filiation mechanism for single women has been put in place: it is about early joint recognition, which must be made before a notary at the same time as the consent to the donation required for all couples.

But in fact, lesbian women will be added to the waiting lists, estimated in 2021 at already more than a year to obtain a donation of gametes, and will therefore certainly continue to using assisted reproduction abroad, especially in neighboring countries (Spain, Belgium, etc.). Once one of the two members of the couple is pregnant thanks to sperm donation and assisted reproduction abroad, the young mother can consent to the adoption of his child by his wife, possible since the child has only one legal parent. This kind of situation has already taken place several times in France and is not considered to be a fraud against the law and an obstacle to adoption within a same-sex couple.

So lesbian couples who want to start a family through WFP do their own thing parental project in two stages, assisted reproduction in the first place, the adoption of the child of the spouse thereafter.

Homoparentality and surrogacy: a still very complex situation

Surrogacy (Surrogacy), that is to say the use of a surrogate mother, remains prohibited in France, to all couples. Same-sex couples using surrogacy abroad are therefore outlawed.

In the case of a gay couple, only the spouse who is the biological parent of the child (i.e. the one who donated his sperm for in vitro fertilization) is recognized as the biological and legal parent of the child.

note that the European Court of Human Rights condemned France in 2014 for rejecting the request to transcribe birth certificates of babies conceived by GPA abroad. She considers that this refusal infringes the rights of the child, which could lead France to review the situation.

A distinction between legal parent and social parent

According to French law, only biological or adoptive parents are recognized as the legal parents of the child. We thus distinguish the legal parent, that is, the one who has a biological or adoptive link with the child, and the parent social, or intended parent, which has no legal status vis-à-vis the child.

In a female couple, the social parent is the spouse who did not bear the child in the event of ART and did not proceed with the specific filiation procedure.

In a male couple who have had surrogacy, the social parent is the spouse who is not the biological father of the child.

Even if he fully participated in the parental project, thehe social parent is not legitimate in the eyes of the law. He has no right or duty over the child and does not hold parental authority. A legal vacuum that can pose a problem in the event of the death of the legal parent, or even of separation of the couple of the same sex. The social parent will not bequeath anything to this child in the event of death, since he is not legally recognized as his parent.

On a daily basis, this social parent also encounters very concrete obstacles, such as that of not being able to carry out the administrative procedures for the child (registration at the nursery, at school, medical procedures, etc.).