A transgender woman cannot be recognized as the mother of her daughter without having to go through an adoption, according to a decision rendered Wednesday by the Court of Cassation.
For lawyers Clélia Richard and Bertrand Perier, guests of Europe 1, this decision is unfair and contrary to the interests of the child.
The Court of Cassation did not recognize, on Wednesday, the right of a transgender woman to be officially the mother of her biological daughter, while she still had her male reproductive organs at the time of conception.
The highest court overturned a judgment rendered by the Montpellier Court of Appeal which proposed to qualify Claire (the first name has been changed) as a "biological parent" on the civil status of the little girl.
For lawyers Clélia Richard and Bertrand Perier, respectively lawyer for the plaintiff and representative of the association of gay and lesbian parents (APGL), this decision goes against the interests of the child.
"When you're a woman, you're a mother, not a father"
In 2011, Claire was officially recognized as a woman on her marital status, before conceiving a daughter naturally with her wife in 2014, with whom she had previously had two children.
At the time the child is conceived, his marital status is therefore female, even if his reproductive organs are male.
"She has always been a woman," explains her lawyer at the microphone of Frédéric Taddeï.
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But what is cruel according to the two lawyers is that "justice refuses to take the second step, which was to recognize her as a mother. When you are a woman and a parent, you are a mother, not a father!" Bertrand Perier is indignant.
"We refer her to the sex that she refused and that the French Republic denied her" by accepting her change of civil status.
"Put the child at the center of the decision"
The Montpellier Court of Appeal had proposed the concept of "biological parent", a term that does not exist in the law and was therefore refused by the Court of Cassation.
"But the idea of the Court of Appeal, I think, was to put the child at the center of the decision", notes Clélia Richard who points the finger at the problem: "Today, this child has only only one parentage for the moment. If Claire dies next week, her patrimony goes to the first two children and not to the third! If the mothers separate, the child is not protected ".
"We are father, mother, but parents above all," said the lawyer, according to whom this notion of "biological parent" made it possible to see the link of filiation recognized.
"What is quite cruel is that the Court of Cassation leaves only two possibilities: either recognition of paternity - which denies the whole process of transition which is not a fool, which is extremely scientifically framed -, or adopt, which implies adopting your own child! ", deplores Bertrand Perier.
Especially since in the specific case, the adoption would require the agreement of the other parent, "and in this case we do not have it", he recalls.
The other mother is opposed to it, "united in this fight to have the reality of things recognized: a woman who becomes a parent is a mother. The transition must go to the end, on the person but also his filiation. It is consistent. in the interests of the child, "according to the lawyer.
The European Court of Human Rights seized
Clélia Richard agrees: "The law of 2016 provided for the civil status system for children born before the parent's transition", therefore for the first two children.
"The new marital status can be passed on to that of children born previously if they are minors with the agreement of the other parent, if they are of age with their consent. But the legislator had said nothing about them. children who would be born afterwards! "
The European Court of Human Rights will therefore be seized to study Claire's case.