All About Kids

Parliamentary Report on the Family and the Rights of Children
French National Assembly, Paris, January 26, 2006
Executive summary prepared by Louis DeSerres, B.A., M.B.A
Co-Founder Preserve Marriage Canada – Montréal, March 7, 2006

After a year of work and travel to various countries, discussing all points of view, a 30 member multi party
(com)Mission of the French National Assembly recently submitted its report on the evolution of the family
and the need to adapt family law to changes in the family and the rights of children.

“The family is the natural and fundamental group unit of society and is entitled to protection by society and
the State. ». (United Nations Declaration of Human Rights, article 16.) Faced with the desire by individuals
to choose their own family structure models, increasing family breakup and new scientific possibilities, the
report attempts to protect the basic unit of the family while taking into account these societal changes.
The Mission believes that laws should set norms in order to “allow individuals to build their lives around
stable, sure and understandable criteria” Laws should not simply validate changing mores.

Articles 3, 7, 9, 18, and 21 of the New York U.N. Convention on the Rights of the Child (1989) set out
children’s family rights. “To systematically give preference to adult aspirations over respect for these rights
is not possible any more.” The Mission deems it essential to enshrine article 3 into French law to help guide
judges, individuals and other institutions. (“In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary consideration.”)

Children represent the future of society. They “must not suffer from conditions imposed upon them by
adults”. “The best interests of the child must prevail over adult freedoms … even including parents’
lifestyle choices”. The legislator is not obligated to adopt the most permissive foreign legislations.
Marriage, adoption and medically assisted reproduction are inseparable. “Countries that have opened
marriage to same sex couples have all authorized adoption by these couples and developed systems to assist
procreation, including surrogate motherhood, in order to allow these couples to have children.”
French law allows three forms of organization for couples: common law, civil unions (PACS) and
marriage, each with its own proportionate set of rights and obligations. Because of its higher level of
commitment, permanence and judicial support for children (in divorce), marriage offers the greatest
protection and benefits for children and society.

“Marriage is not merely the contractual recognition of the
love between a couple. It is a framework requiring rights and obligations conceived in order to allow for the
welcome and harmonious development of the child.” Thus, marriage is the only structure reserved strictly
to heterosexual couples. The Mission renews its support for this tiered system and recommends that the
various rights and obligations of each type of union be clearly explained to couples when they register for a
common law certificate, a PACS, marry or have a child.

Because of the filiative nature of marriage (the fact of being the child of certain parents), it is essential that the male-female nature of marriage be preserved. “This corresponds to a biological reality, that same-sex
couples are naturally infertile, and to an imperative, that of helping the child develop his/her identity as
necessarily coming from the union of a man and a woman.”

“The purpose of adoption is not to provide a child to a family but rather provide a family to a child… Given
the original trauma of his personal history, the adopted child requires the judicial and emotional security
that only married parents can provide.” Furthermore, same sex parenting introduces additional
discontinuity for the adopted child, “namely the loss of the analogy between the original couple and the
couple educating him”. Favoring equality for adults would bring about a greater inequality towards
children. For both adoption and medically assisted reproduction, the report rejects notion of a right to a
child.

The report severely criticized the studies it received claiming that same sex parenting carried no ill effects
for children. It noted the lack of scientific rigor, inadequate sampling and the flagrant lack of objectivity in
these reports. Without criticizing the educative and affective qualities of same sex parents, the report
nevertheless concludes with the need to adopt a precautionary principle, as is the case in other domains.
Adoption either replaces previous filial links (plenary adoption) or potentially multiplies them (simple
adoption). The report expresses concern about how to limit the potential multiplication of filial links
created as adults change partners over time, thus confusing children. The report thus does not support
adoption by single parents or same sex couples.

With same sex parents, a child would find himself with two
fathers or two mothers. Opening up adoption in these circumstances would also open the door to
circumventing existing restrictions, lead to abuse and jeopardize children’s filiative rights.
Under current law, and in the best interests of the child, medically assisted reproduction is limited to
heterosexual couples who are either married or who can prove a minimum of two years of common law
relationship. Because these procedures involve a third party donor, a judge must grant permission in a
process akin to an adoption (of a foetus).

While medically assisted reproduction now makes it possible for sterile couples, including same sex
couples, to have children, the process opens the door to the breakdown between the various dimensions of
parenting: the biological (progenitor), the judicial (parental authority) and the social (day to day care). It
would also lead to science creating fatherless children. The report cites Québec, where children can thus
have two mothers listed on their birth certificates and no father. The report rejects assisted reproduction for
single women and same sex couples. It also considers that the child needs the judicial and emotional
security which is best assured when the biological and the legal ties are aligned.

“Preserving the prohibition on surrogate motherhood is justified … for two crucial reasons based on the
protection of human dignity: first, the fact that the human body cannot be disposed of; and second, the fact
that filiation also cannot be disposed of. Revisiting those values would amount to denying the bond that
grows between mother and child during pregnancy and opening the door to a wide range of abuses. In
California, for instance, the birth of a child might involve as many as five people: a sperm donor, an egg
donor, a gestator and the couple who are the legal parents.”

The report rejects claims of discrimination in the case of assisted reproduction, noting that “the difference
in situation between couples of different sexes and those of the same sex are so obviously different in terms
of reproduction.” It highlights that allowing such “would create discrimination between male and female
homosexual couples, unless access to surrogate motherhood is granted to male couples.”

Finally, the report stresses the need, in the medium term, to lift the veil of secrecy in the case of children
born from anonymous mothers and allow children to know the identity of their mother when they reach
their majority. It recommends aligning the minimum age for marriage to 18 years for both men and women
in order to fight forced marriages. It also recommends the creation of a “delegation of parental authority” in
order to provide more flexibility to judges “regarding the education of the three million French children
who do not live with both parents”.

Finally, the report delves extensively into child protection, detection of
abuse, care, and coordination between various institutions.