Question 10915 — family benefits

Summary

Ms. Danielle Simonnet draws the attention of the Minister of Health, Families, Autonomy and People with Disabilities to the situation of same-sex male families whose child was born following surrogacy (GPA) carried out abroad. Since a recent administrative reinterpretation, primary health insurance funds have refused to grant paternity and childcare leave to the second parent in male couples, on the grounds that the law reserves this right for the father or the mother's spouse. However, this reading is not based on any legislative modification of the labor code or the social security code and contradicts previously accepted practice. In its recent discussions with policyholders, the National Health Insurance Fund cites the decision of the Constitutional Council No. 2025-1155 of August 8, 2025, which would have validated this difference in treatment in the name of protecting the mother and avoiding her isolation after childbirth, as well as article 7 of law no. 2021-1017 of August 2, 2021 relating to bioethics, limiting the transcription of filiation to a single biological parent. However, neither this decision nor this law modifies the provisions relating to paternity and childcare leave, the purpose of which is also to ensure the presence of the second parent with the newborn, whatever their mode of conception or family structure. The Social Insurance division of the Defender of Rights, in a response to a referral on this subject on October 31, 2025, considered that the refusal to second fathers in male couples could constitute discrimination based on family status, by introducing a condition of filiation not provided for by law and that it harm to the best interests of the child, who is deprived of the presence of both parents upon his arrival in the home. He also recalled that a dispute is underway before the Council of State, on which he has been invited to present observations. Ms. Danielle Simonnet underlines that this practice results in a clear breakdown of equality: in a heterosexual couple or one made up of two women, both parents benefit from leave (maternity and paternity or childcare), whereas in a male couple, only one benefits. This unequal treatment, which does not arise from the law but from an uncodified administrative interpretation, deprives certain families of a fundamental social right and certain children of the protection due to all French children. The MP believes that the ethical debates surrounding surrogacy are legitimate and necessary, all the more so when they involve a significant risk of commodification of women's bodies. However, these debates cannot lead, once the child is born, to creating discrimination between children, nor to limiting their rights to the presence and protection of both parents. In accordance with article 3-1 of the International Convention on the Rights of the Child, the best interests of the child must take precedence over all other considerations. Also, she asks whether the Government intends to recognize that the exclusion of the second father from the benefit of paternity and childcare leave does not result from any express legislative provision and to initiate a development guaranteeing equal treatment of all families with regard to the right to parental leave, in compliance with the constitutional principles of equality and protection of children.

Machine translation from French. The official text remains authoritative.

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