The Cour de cassation ruled Friday that, while surrogacy will remain banned in France, children born abroad through this practice will now be legally tied to their parents and will be granted birth certificates and immediate means to prove their French citizenship.
"This means no less than the recognition of our child, of these children's French citizenship and of the rights that go with it," said Dominique Boren, 51, father of a 4-year-old boy born in Russia from a surrogate mother, with his husband beside him.
Surrogacy can involve a woman carrying an embryo created by in vitro fertilization using another woman's egg. In some cases the surrogate mother is also the genetic mother of the child. The procedures are used by heterosexual couples unable to conceive, gay couples, as well as single parents.
Until now, surrogate children were deprived of any legal connection to their parents, or any civil status in France. They were considered as children born from unknown legal parents, since their foreign birth certificates weren't recognized. One lawyer has described them as "ghosts of the republic."
Unlike other children born abroad to a French parent, these children couldn't get automatic ID cards or passports, or register for state health care or other services.
This exposed them to frequent problems, because many basic tasks are impossible in France without an ID or authorization from a legal parent.
In addition to potential psychological troubles due to their incomplete identities, the children were also deprived of eventual inheritance, and faced major imbroglios in case of a divorce or the death of one parent.
Many hope that Friday's ruling will increase the options for infertile and same-sex couples in France. For-profit sperm banks are forbidden, as is surrogate parenthood, seen by many as turning the womb into a commodity.
Europe's top human rights court last year ordered the country to change the law on surrogate children, saying France's refusal to recognize them was "an attack on the child's identity, for which descent is an essential component."
In Friday's ruling, the top judges had to take into account the European decision. They found that their previous case law was contrary to the European Convention on Human Rights, and so decided to allow the transcription of the foreign birth certificates into the French civil status.
"This is undoubtedly setting a legal precedent considering the court's previous rulings," Boren's lawyer, Mathieu Stoclet, told reporters in front of the Cour de cassation courtroom.
The new ruling came in response to Boren's case and a separate case involving a single man who had gone to Russia to have babies through surrogate mothers.
The Cour de cassation said that the French birth certificates will have to mention as parents those who are named in the original foreign birth certificate, even if they are not the biological parents. The only condition set by the judges is to check that the original certificate is not "falsified" and "is corresponding to reality."
The overwhelming majority of the French parents using surrogacy abroad are heterosexual couples.