🚧The invention of the 'right to a child'. The consequences of contractual practice as a source of childbearing

1. A "case-by-case" solution may implicitly alter the very conception of the legal concept being used  📜👶 When judging a case, it is tempting not to give a definition, not to refer to a general concept (which we will then call a 'theory', i.e. something that serves no purpose), and to consider only the immediate effects of the solution to the difficulty of the situation under consideration, without worrying about (or at least without exposing) the broader consequences that a new solution developed for a particular case may entail. Firstly, a so-called "pragmatic" presentation would silence those who take a more general view. Secondly, by restricting the scope of the discussion to a narrow circle that one has chosen oneself, namely the choice of a particular solution appropriate to the specific case under consideration, one would prohibit observations from a broader perspective.

2. The "pragmatic" solution of the 14 November 2024 ruling changed the very concept of filiation  📜👶  However, the case law of the First Civil Chamber of the Court of Cassation, particularly in the ruling of 14 November 2024, which claims to offer only a practical solution to a specific case, namely a child born through surrogacy abroad whose filiation is recognised in relation to persons who desired his or her arrival without having any biological link to him or her, by admitting the validity of an exequatur judgment of the foreign judgment recognising such a link, has changed the concept of filiation. Since it now implies that parentage originating from the will of the contracting parties, as recognised by a foreign court, is legally effective under French law.

3. One may or may not agree with the conceptual change, but one cannot deny the magnitude of the change📜👶 One may agree with it, one may not agree with it, but at the very least, one must say so. Academics have said so. Indeed, beyond the destruction of Article 16 of the Civil Code, which, in the name of human dignity, prohibits surrogacy, it is the concept of filiation that has been changed by this section ruling. This decision brings two new developments. Firstly, Article 16 of the Civil Code no longer exists, which may upset those who refer to international public policy and believe that the prohibition of surrogacy is what protects women and children. Secondly, the creation by a section ruling of a new filiation link, namely filiation by contract, may upset those who believe that filiation is an institution that judges cannot create and, above all, that a contract is a legal instrument that cannot create filiation links. Or it could create anything. Others believe that this is, on the contrary, a very good thing, that it is progress, that contracts are our future and that they can create anything, shaping new institutions (in this case, a 'new filiation' at the behest of the parties), with parentage being only the beginning, as the contract can give rise to new concepts that must be incorporated into the legal system. It does not matter if the legal system is gradually overtaken, disappears and re-emerges with "new concepts", those that contracts will have conceived, under the dictates of powerful contractors.

4. At stake today is the advent of filiation established purely and simply by contract. 📜👶 This practical prospect is now firmly on the table. This is because the surrogacy contract gives concrete form to a "right to a child", a new concept that changes the legal system. It is from the perspective of this concept that we must first position ourselves, so that everyone can assess society and make their own choices. One might think that depending on whether we are those who provide the child (the agencies that have built the market), those who want children (the co-contractors, often misled by these agencies), those whom the law legally refers to as the mother and who provide the material service (she is contractually bound to say nothing) and the child (who by nature says nothing), we will choose the path created by the judge of a filiation that the contract engenders, or we will remain at the heart of our legal system: the summa divisio between the person and things.

5. Soundness of concepts, pillars of the legal system, and scope of the legal consequences of their modification📜👶  The purpose of this article is therefore not to revisit in detail the case law of 14 November 2024, which has been examined elsewhere📎!footnote-4619. The purpose of this article is to emphasise the impact on a legal system of undermining the concept of filiation and, through this, the first of the pillars established by the legal system, namely the legal definition of human beings themselves. Indeed, before adopting or accepting new solutions📎!footnote-4620, it is necessary to bear in mind the conceptions that the legal system has or may have of what a human being is, in particular what engenders and anchors them in relation to what engendered them: Filiation is therefore certainly a matter of feelings and family, but also of politics and social issues of the utmost importance. This is also what the principle of the unavailability of persons refers to📎!footnote-4621. One cannot dispose of one's filiation because one cannot dispose of one's deep roots in a society. One may regret this and argue that everyone should have the autocratic power to create their own little society. This view is currently supported by certain thinkers in the United States. In Europe, there is no support for the idea that the social system can be blown up and abandoned by free and powerful individuals. The original concepts, which are based on the Social Contract, are different. The law must reflect this, particularly in the institution of filiation.

6. No legal system, whether civil law or common law, is devoid of fundamental concepts that form its backbone: the concept of filiation is one such concept. The "right to a child" modifies it📜👶Indeed, the law is not just an accumulation of concrete solutions found to resolve particular difficulties. Whether in Civil Law or Common Law, it always forms a system based on principles, definitions and categories laid down by texts, case law and even contracts. For example, human beings fall under the legal category of persons. It follows from this concept that seizing a person is contrary to public order, as it amounts to treating them as a thing. The evolution of solutions that, on a case-by-case basis, challenge this, leads us to reiterate this point📎!footnote-4625.

7. The core of the French legal system: distinction and articulation between persons and things.📜👶The French legal system is built on the distinction between persons and things. This policy choice, established by Roman law📎!footnote-4626, has never been challenged. The category of persons is a closed category, responding to a definition, while the other category, that of things, is an open category. Thus, a person is a holder of rights and obligations (the "subject of law") while a thing is anything that is not a person. This gives rise to two types of rights: personal rights (which relate to persons), whose binding force is limited because the person must always be free (only a criminal court can deprive them of their freedom), and property rights (which relate to things), whose binding force is considerable because the holder of a property right can seize the thing, destroy it, etc. It is also established that every human being is a person from the moment of conception. These simple principles form the backbone of our legal system.

8. The person "is their body"📜👶 In such a legal system, every living human being is inseparable from their body: this is why blows to living human bodies constitute "assaults on the person", including assaults perpetrated on a person's body before birth. Because there is no distance between oneself and one's body, a person cannot rent out their body in whole or in part, cannot sell themselves in whole or in part, and cannot give themselves away in whole or in part.

9. All criminal law is based on the inseparability of the person and their body📜👶 One could conceive of a different system. A legal system, that is to say, a society in which, for example, human beings would be owners of themselves, or at least owners of their own bodies, and could transfer or rent them, etc., or even rent and appropriate the bodies of others. There are converging interests in this. But the humanist tradition of European law excludes it. The principle of the unavailability of the human body remains. Criminal law continues to uphold it, stating more than ever that the "consent of the victim" cannot justify assault and battery.

10. At the heart of the status of persons, filiation, a physical phenomenon, is primarily biological📜👶 This inseparability of the person and their body, which is part of the very definition of a human being as a person, has several major legal consequences. Firstly, filiation is biological📎!footnote-4623, linking the child to the woman from whose body it emerged. The State must rely on the reality of this biological link to establish it, with adoption itself establishing such a link and providing the child with one or two new parents. In surrogacy contracts, the woman who carries the child affirms, if another woman provides the egg, that she has no biological link with it, which contradicts epigenetic reality. However, in contracts concluded abroad, this woman, who is often not a co-contracting party, intervenes to secure the contractual relationship and affirm that she has no rights over the future child, that she has no parental plans and that if she were to have any rights, she waives them in advance.

11. In our legal system, where every human being is a person, the "right to a child", which forms the basis for the transfer of a human being, is therefore "inconceivable".📜👶  In our legal system, it is therefore impossible to "conceive" of a "right to a child". In fact, there is only a "right to" things or services. Because a child is a human being, a closed category corresponding to a specific definition, it cannot be the subject of a "right to", a real right, which allows, for example, the forced delivery of a child in accordance with the law, its rejection for non-compliance, its transfer, etc. This is not conceivable because in Europe human beings are not things.

12. The "right to a child" is inconceivable at present, but we can always rethink the distinction between persons and things, replacing it with the normative power of contract📜👶  It is true that society and the legal system that underpins it can be conceived of differently. For example, in the law of the new states of the United States, it is accepted that a child can be conceived solely by the force of contract. There is no mother in the biological sense of the term. There is one or more "carriers of a child project" and a co-contractor capable of carrying out this project, i.e. an agency. In a global market of people who can provide the required services, such as egg donation, gamete donation and pregnancy, the agency chooses what will suit the project, and the execution of this contract will result in the birth of a child whose connection to the "intended parents" will most often be established by a judge. The service is remunerated, with the quality and suitability of the child depending on the requirements of the agency's co-contractors.

13. Until now, conceptual substitution in favour of the contract has been ruled out by society's rejection of a "total market".📜👶 This concept has been rejected for the time being, except in black markets, or even illegal markets, where newborns are stolen to feed illicit networks. But for now, this activity is only developing, and very well, under the skies of a "total market" society📎!footnote-4618 where human beings can offer anything that has market value. For the time being, Europe and the French legal system refuse to conceive of themselves as a "total market".

14. The assertion that a new form of filiation could become "conceivable" because it is practised📜👶. This makes it all the more tempting to begin to "conceive" of new parentage, i.e. parentage born of a purely contractual relationship. This is claimed by first positing that since it is done, the law must admit and conceptualise it (sociological positivism): if "inconceivable" things are practised, then there would be a kind of social duty of the law, through legislation or case law, to "conceive it by integrating customs". Customs would dictate the decrees. The law or the judge would then have to 'acknowledge' what is done. This is what those who wanted minors 'consenting to sexual relations' to be given the age of sexual consent demanded, since 'it is done', requiring that the very definition of the age of majority be changed. They did not get their way, as the need to protect children continued, even increasing, the assertion that it is "inconceivable" to hand them over to adults on the pretext that it is common practice, that they would agree and be well treated.

15. The category of "unconceivable practices", either because they have "not yet been conceived" or because they are "unadmissible".📜👶 Furthermore, in terms of parentage, what is new is not so much that there are practices of custom-made children, women available for this purpose, children whose lives unfold happily, having thus begun with a civil status obtained through various and varied processes. What is new is the demand for legal recognition of this "inconceivable" practice, since it runs counter to the very foundations of the French legal system: the mere fact that it is practised could justify its recognition by the law📎!footnote-4617, or the fact that recognising these practices could limit the damage they cause📎!footnote-4616.

16. Practices that are "not yet conceived" and require new regulations: "new forms of parenthood" do not fall into this category, remaining "inconceivable" because some, such as surrogacy, are "unacceptable". 📜👶 In the category of "inconceivable practices", a distinction must be made between practices that the law has not secured because it has not taken them into consideration: these are practices that have not yet been conceived by the law, such as algorithmic practices, for which the legal system must find new practices. And practices that are inconceivable because they conflict with a basic principle of the legal system, in this case the fact that a child is a human being and that the practice of surrogacy cannot be recognised as establishing a new type of parentage, renewing the institution of parentage: this is therefore more of an "inconceivable" practice because it is "unacceptable".

17. The test of surrogacy: if we make it legally "admissible", then the Law will necessarily have "conceived" filiation by simple contract📜👶 However, the practice of parentage that is said to be "new" and "inconceivable" in this second sense, i.e. "inadmissible" parentage, because it is practised on the global market for young women who biologically bear children so that surrogacy contracts between agencies and prospective parents can be fulfilled, has become legally "acceptable". All that is required is for a foreign judgment to obtain exequatur for the child born of these two desires to have a parentage recognised by the French legal system.

18. The new filiation created by contract, the object of a thriving global market📜👶   In order to find a practical solution to the situation of newborns living in France, as they will only have lived abroad for the time it took to be born there, the ruling of 14 November 2024 therefore validated the "contractual parenthood" of a child. This had been expected for many years by the agencies that control the global market for unborn children and women available to bear them through what has become a non-legally required link: the biological link. Economists will take note of this new market, having little regard for the fundamental structure of the legal system. CSR managers will no doubt consider that this is too far removed from their areas of concern. The judge will be there to ensure that there is no abuse, which only increases the legality of the very principle that is now contractual power, requiring only a plan to have a child and a meeting of minds (the agency and those who want a child).

19. By making the "unconceivable" practice of surrogacy "legally admissible", contractual power undermines the distinction between persons and things📜👶  When concepts change, all practices can change. All it takes is for one will to meet another will and mobilise material resources (in this case, genetic material, but it could also involve organs, etc.) to achieve the object of the contract, which is the filiation link between the child and one of the parties to the contract. The practice thus becomes "conceivable" to the judge through the best interests of the child, who is, in fact, the very object of the contract offered to all those who have the financial means to afford a child, the filiation link being the necessary accessory that comes with the delivery of the newborn.

20. The contractual power to create filiations conceives of so-called "private" spaces where everything is at its disposal, with the State and institutions kept at a distance, only required to uphold contractually established institutions, filiation being only a prime example📜👶 In such a contract-governed system, the parties to the contract make their own decisions about the object of their desires and assert both the self-sufficiency of this contractual normativity and the fact that parentage is a matter of privacy, in which the State has no business interfering. Thus, the institution established and maintained by the State is replaced by a bouquet of subjective rights, here the right to a child, there the right to a civil status, a collection of individual prerogatives that the individual obtains in multiple ways and demands that the State implement. The state is then no longer the source or guardian, but a kind of debtor of the effectiveness of various and varied subjective rights, with the individual able to take action against the state if it does not fulfil these new rights, regardless of how and where they are obtained📎!footnote-4624. Contractual imagination can thus establish as many "new filiations" as there are projects to be realised. Thus, through the power of the contract, a natural instrument of the market, algorithms can be treated as persons (this is often argued for conversational robots) and human beings as suppliers of raw materials, their bodies being the primary source of these materials.

21. Keeping in mind the open prospect for human beings of a contractually governed global society📜👶  In this new "concept", the subjective right to a child would be formalised through a contract offered by providers in this specific market of parentage, with the State not interfering and simply acknowledging the effects of the contract, i.e. recognising the legal parentage relationship thus established within its legal system. This is a new "concept", that of parentage by pure and simple contract, which has been supported by the First Civil Chamber of the Court of Cassation. This contractual power would remove public policy (Article 6 and Article 16 of the Civil Code) from the equation, with the administration and the judge having the function of securing filiation transactions.

22. The judge's role is limited to securing the contractual filiation transaction and ensuring its balance📜👶 This "concept of the right to a child", satisfied by the contract and secured by the judge, refers to a concept of society whose contractual pillar would suffice to satisfy the rights of those who have the means to enter into the privileged position of the contracting party. Many other "innovations" can arise from such a conception, in matters of marriage and family name.

23. A new step towards a "contractual society" where powerful contractual parties could create the institutional social pillars📜👶  Because the distinction between persons and things is also being challenged by companies that claim that algorithms are "intelligent", "learning", "creative", etc., this path towards a global society governed by contracts that can dispose of the distinction between persons and things, a distinction built to protect human beings, the perspectives, particularly those experienced and promoted by Californian technology companies, call for us to bear in mind that not every practice is "conceivable". If we want the law to remain a system designed to protect human beings in situations of weakness.