When simplification complicates things. Maël, a two-month-old northerner born from medically assisted procreation (PMA), could have had two mothers. To date, legally, he only has one. Except that Emilie, her biological mother, is not single, married since June 2021 with Nelly. Moreover, this lesbian couple already has a 3-year-old child, also from a PMA abroad. But the youngest came into the world in between two laws on PMA, a period of legal uncertainty which prevents his mother’s wife from recognizing his parentage.
The new bioethics law, promulgated on August 2, 2021, is considered real progress by LGBT associations, in particular because it widens access to PMA in France to female couples and single women. Logically, this same law also facilitates the recognition of filiation of the child resulting from a PMA by that of the couple who did not give birth. This is called “advance joint recognition”, which is carried out by a notary at the same time as the consent of the partners to the MAP procedure is obtained. In other words, the spouses recognize the child to come and no longer the child conceived.
“A situation not foreseen by the texts”
In their calculation, Emilie and Nelly had nevertheless planned their move. “We had an appointment with the notary on August 18, 2021 and Maël was conceived on September 30 in a clinic in Belgium,” recalls Nelly. Except that the notary refused to establish the act of early recognition. “Admittedly, the law was promulgated on August 2, but the implementing decrees only arrived much later. Between two, it was impossible for the notaries to establish the slightest deed for the simple reason that they did not know what to put in it, ”explains master Emilie Duret, lawyer specializing in family law.
The couple therefore fell from the clouds when, on Friday, the Lille prosecutor refused to recognize Nelly’s parentage with little Maël. In its decision, the prosecution recognizes that couples like Nelly and Emilie, whose children were born after the law of August 2, “find themselves in a situation not provided for by the texts”. The only solution then available to the spouse who has not given birth to establish a bond of filiation with the child is adoption.
“What will happen if my wife dies? »
“It’s a much longer procedure which requires putting together a more complicated file with always this uncertainty at the end, linked to the judge’s assessment, who may very well refuse”, deplores Maître Duret, specifying that many lesbian couples were in the same situation as Nelly and Emilie. “We are going to start this adoption procedure because we have no choice, loose Nelly. But how are we going to explain to our children that one is recognized and the other adopted? »
Another consideration, even less pleasing, is exposed to the couple while waiting for the full adoption to be pronounced. “What will happen if my wife dies, wonders Nelly, since, legally, I have no rights towards Maël? “. Will the siblings be separated? Will we take away the youngest? We do not know. “Yes, this law is going in the right direction, it is the transition period that has been very badly managed. Even lawyers and notaries find it difficult to understand everything, ”says Maître Duret. And the government also obviously, since on the very official site ” Life-public.fr » gives different information than what the law contains.