The Nameless Child



In a few days, the Senate will examine a bill presented by Ms. Anne-Catherine Loisier, senator, to name children born without life. The only article of this text thus intends to contribute to improving the legal status of these children whom article 79-1 paragraph 2 of the civil code designates as being “born without life”. Since the law of January 8, 1993, this article has in fact given the possibility to the parents of a child who died before having lived to ask the registrar, the mayor, to draw up an “act of lifeless child ”.

Since a decree of August 20, 2008 and a circular of June 19, 2009, to proceed, it is necessary for him to have a medical certificate attesting that the spontaneous delivery, or induced for medical reason, took place from the thirteenth week. of pregnancy. Even if the legal personality is not recognized, for lack of being born alive and viable, the lifeless child can then be registered in the family record book. In doing so, the issuance of this act allows, symbolically, a welcome of this little being in his family. It is then a question of taking into account the pain of the family by allowing them to mourn.

Gaps

This reception is not, however, perfect. Indeed, the circular of June 19, 2009 specifies that “If the parents express the desire”, “One or more first names can be given to the lifeless child”. However, it indicates that“No family name can be conferred on him and no link of filiation can be established with regard to him” because, she said, “Parentage and family name are attributes of legal personality”.

It is therefore one of these gaps that the bill intends to fill, by allowing the lifeless child to have, in addition to his first name, this name which is the most visible sign of belonging to a family. Obviously, we must congratulate ourselves on it and hope that the senators and then the deputies will adopt it. But we must go further by also establishing the bond of filiation between this child and those whom Article 79-1 already designates as “His father and mother”.

Principles of parentage law

From a rational point of view, one can indeed wonder about the relevance of the designation of the parents of the child when the filiation with regard to him is excluded. The concepts are indeed reciprocal: if there is a father and a mother, it is because there is a son or a daughter; the bond existing between the first and the second is the bond of filiation which must therefore be recognized. Then, from a technical point of view, it is quite possible to proceed with the establishment of the bond of filiation of the lifeless child without violating the principles of the law of filiation.

This is the solution that the case law of the European Court of Human Rights calls for, whose influence on family law no longer needs to be demonstrated (see in particular J.-R. Binet and A. Gouëzel, The ECHR and family law, Ed. IFJD, March 2021). She has indeed decided, in a judgment Znamenskaya v Russia of 2 June 2005, that the refusal to admit the existence of a parentage link between a parent and a stillborn child constituted a violation of the right to respect for private and family life.

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