French Supreme Court Defines Legal Effects of Foreign Surrogacy and Adds Reasons Requirement
This post was written by Mathilde Codazzi, who is a doctoral student at Paris II Pantheon-Assas.
On 2 October 2024, the French Cour de cassation issued two decisions regarding respectively the conditions for declaring enforceable foreign judgments establishing legal parentage between a child born abroad to a surrogate mother and the intended parents and the effects that they produce in France (see also the press release issued by the Court).
Background
In both cases, a couple of men who were residents in France entered into a surrogacy contract abroad.
In the first one, the Superior Court of Ontario (Canada) issued a decision on 24 June 2014 – that is a month after the children’s birth – establishing the two French men as the parents of the child, ordering that the registration of birth refers to them as such and ordering that their birth be registered as designing the two French men as the child’s parents. The couple then sought a declaration of enforceability (exequatur) of the Canadian decision before French courts.
In the second case, on 5 June 2019, the Superior Court of the State of California rendered a pre-birth judgment in which, pursuant to a surrogacy contract concluded between the parties, it established the two French men as the child’s legal parents, ruled that the surrogate mother and her husband are not the child’s parents and do not have any obligation towards the child, and set aside any presumption of paternity or maternity. The couple sought a declaration of enforceability of the Californian decision before French courts and requested that the same effects as a French “adoption plénière” (full adoption) be attached to it.
Lower Courts Judgments
In the first case, in a judgment of 14 June 2022, the Paris Court of Appeal rejected the application for enforcement. It ruled that the Canadian decision lacked reasons as it did not mention any surrogacy contract, did not indicate the legal status of the parties who are deemed not to be parents, and did not mention the relinquishment of their potential parental rights. The decision was therefore found to be contrary to French procedural international public policy. The Court of Appeal added that since the decision was not properly reasoned, it did not have to examine the applicants’ allegation according to which the refusal to grant enforcement violated their child’s right to respect for private life and was discriminatory under Articles 8 and 14 of the European Convention on Human Rights as well as the child’s best interest under Article 3 of the United Nations Convention on the Rights of the Child.
In the second case, in a judgment of 23 January 2023, the first instance court granted enforcement to the Californian decision, from which the Paris Court of Appeal deduced that the effects of a French “adoption plénière” (full adoption) should be attached to it.
Issues
The two cases did not raise the same question.
In the first one, the issue concerned the extent of the reasoning required of a foreign decision establishing legal parentage between a child born to a surrogate and the intended parents in order for it to be granted enforcement in France.
In the second case, the issue related to the effects of such a foreign decision that has already been declared enforceable by French courts – more specifically, whether the effects of a full adoption under French law (“adoption plénière”) could be attached to the foreign decision.
Judgments
In the first case, the French Supreme Court upheld the decision of the Paris Court of Appeal by a judgment of 2 October 2024.
In accordance with its precedents, the Court recalls that that where no international convention applies, three conditions are required for declaring foreign judgments enforceable under the French common law of foreign judgments: the foreign court should have jurisdiction to hear the case, the decision should comport with French international public policy and it should not have been obtained for the purpose of evading the application of French law. It rules that the enforcement of a foreign decision which lacks reasoning is contrary to French international procedural public policy if no supporting documents making up for the lacking reasons are provided by the applicant.
The novelty is that the Cour de cassation decides to apply more specifically the requirement of reason giving to the context of surrogacy and defines what it means. The Court rules that the reasoning should be assessed for the purpose of determining, on the one hand, the risks and vulnerability of the parties to the surrogacy contract as well as the dangers inherent to surrogacy, and, on the other hand, the child’s and the parties’ right to respect of their private life protected by Article 8 of the European Convention on Human Rights, the child’s best interest being a primary consideration according to Article 3 of the United Convention on the Rights of the Child. The Court then clarifies that the goal is more precisely to identify, through the reasoning, or, failing that, through other documents provided by the applicants, the legal status of the parties concerned and to ensure that all of them, especially the surrogate, consented to the contract, included its effects on their parental rights.
In this case, the Supreme Court agrees with the Court of Appeal for considering that none of these two conditions were satisfied. And since no documents had been provided by the applicants despite the reopening of the proceedings for that purpose, the Court of Appeal could only find that the Canadian decision did not comply with French procedural international public policy.
Finally, the Supreme Court approved the Court of Appeal for dismissing the allegation of violation of the applicants’ right to respect of their private life and of the child’s best interest, on the ground that they did not provide any elements allowing the court to assess the existence of a concrete violation.
In the second case, the French Supreme Court allows the appeal against the decision of the Paris Court of Appeal. The Court rules that when a foreign judgment that establishes the parentage of a child born to a surrogate but does not order their adoption is declared enforceable, this parentage is recognized as such by the French legal order, and produces the effects attached to it by the law applicable to each of these effects. Therefore, the Supreme Court finds that by ruling that the Californian judgment would be granted the effects of a full adoption of French law, the Court of Appeal violated Article 509 of the Code of Civil Procedure. The Supreme Court then concludes that the claim of the applicants that the foreign decision be considered a full adoption of French law is rejected.
Assessment
In the context of surrogacy, since the modification of Article 47 of the French Civil Code in 2021, the main issue at stake has moved from transcription of the child’s birth certificate to the determination of the legal effects produced in France by the foreign judgment establishing parentage. The transcription of the birth certificate did not amount to the recognition of parentage, which could still be challenged afterwards. In the second case, the French Supreme Court rules for the first time that parentage is recognized in France as such, regarding both parents. Until now, only the parentage link to a biological parent was recognized while the intended parent had to initiate adoption proceedings.
As compliance with French international public policy is a condition for recognition and enforcement of foreign decisions, a clarification of its content in this context is welcome. While the requirement for foreign judgment to be reasoned in order to be enforced is not new, it seems to be the first time that the French Supreme Court applies it to a surrogacy case and that the necessity of ensuring that the parties, especially the surrogate, have consented to the process and to the relinquishment of parental rights is explicitly mentioned and included in the context of surrogacy through international public policy.
Through a rather substantial explanation, the Supreme Court clearly indicates the elements to be considered when assessing the decision’s compliance with procedural international public policy.
Furthermore, one can infer from the fact that documents provided by the applicants can make up for the lack of reasoning that it is not the latter as such that violates international public policy, but rather the circumstance that in such case, the national court before which enforcement is sought is not given sufficient information to verify the foreign judgment’s compliance with French international public policy.
As to the effects attached to the enforceable decision, the issue is henceforth settled by the Supreme court. Several French courts of appeal had indeed ruled differently on the matter: while some attached the effects of a full adoption under French law (“adoption plénière”), to such decisions, other refused to, and not always on the exact same grounds. From now on, a foreign decision establishing legal parentage between a child and their intended parents cannot have the effects of an “adoption plénière” under French law.
This solution can be explained by the prohibition to review foreign judgments on the merits: a judgment establishing parentage in the context of surrogacy is not an adoption order and therefore cannot be given the effects of adoption by a French court.