French Supreme Court Rules Foreign Surrogacy Requires no Adaptation
As reported earlier on this blog, the Cour de cassation ruled in a judgment of 2 October 2024 that a foreign surrogacy recognised in France produces the legal effects provided by foreign law and need not be considered as a full adoption of French law.
Background
In that case, a couple of French men had contracted with a surrogate mother in California. As a result, a California court had rendered a ‘prenatal judgment’ establishing that the French men were the legal parents of the child, and that neither the surrogate mother nor her husband were legal parents and had any obligation towards the child.
The Californian judgment was then recognised, and indeed declared enforceable, in France.
This begs the question, however, of the actual consequences of such recognition.
No Adaptation to French categories
Surrogacy is not a legal concept of French law. Indeed, it is forbidden, and the Cour de cassation ruled that foreign surrogacies aimed at evading the application of French law and could thus not be recognised in France, until the European Court of Human Rights ruled that this was not acceptable.
The obligation to recognise foreign surrogacies, however, did not create a French concept of surrogacy. The issue then arose as to what recognition of a concept unknown in French law could mean.
The claim of the French parents was that the recognition of the foreign surrogacy in France should take the form of a concept of French family law, and they submitted that it should be a full adoption of French law.
In other words, the French parents argued that the foreign concept should be adapted to produce effect in France.
The Cour de cassation rejects the claim. It rules that the foreign surrogacy should be recognised as such, and thus produce in France the effects that it produces under the applicable foreign law.
This is the opposite theory: the foreign unknown legal institution should not be adapted to local legal categories. Its effects under foreign law should merely be extended to France.
Who is Afraid of Foreign Law?
While the judgment does not give any explanation in this respect, it seems clear that it did not seek inspiration from the conservative rule found in many EU regulations, including in the Brussels I bis Regulation:
Article 54
1. If a judgment contains a measure or an order which is not known in the law of the Member State addressed, that measure or order shall, to the extent possible, be adapted to a measure or an order known in the law of that Member State which has equivalent effects attached to it and which pursues similar aims and interests.
Such adaptation shall not result in effects going beyond those provided for in the law of the Member State of origin.
The rule, however, is conservative. There is no fundamental reason why the effects of a foreign judgment could not simply be extended in the forum. The only limit should be where those effects violate public policy. But if they do not, the concept of recognition would seem to lead to an extension of the effects of the foreign judgment rather than its adaptation.
Exception for Family Law?
Is there any good reason why a less conservative rule should be adopted in the context of family law or legal status?
There is no equivalent to Article 54 Brussels I bis Regulation in the Brussels II ter Regulation, and Recital 61 of the Preamble to the Brussels II ter Regulation warns against any adaptation of foreign decisions on the right to access.
Likewise, there is no such provision in the Proposal of the Commission for a Regulation on Parenthood.
Is it meant to be a consequence of the principle of mutual recognition of status promoted by the CJEU? Certainly, these authorities require some form of recognition. But it is unclear why they would exclude recognition through adaptation.
Subject Matter and Scope of the Extension
Finally, the judgment raises an interesting methodological issue. Is the extension of the effects of the foreign decision an issue of recognition of foreign judgments, or an issue of choice of law?
The Court held that, once the foreign judgment is declared enforceable in France,
this parenthood is recognised as such in France and produces the effects which are associated with it in accordance with the law governing each of these effects.
This mysterious sentence raises several questions.
First, it seems to suggest that the determination of the effects of the foreign decision is an issue of choice of law, rather than one of recognition of the foreign decision.
Second, if the issue is one of choice of law, should the requested court apply its own choice of law rules, or those of the foreign court? Is the issue that of the determination of what the foreign court would have ruled if it had expressly defined the relevant effect of its decision? Or should it be considered, rather, that the forum should take over and define the effects of the parenthood in accordance with its own choice of law rule? Is a distinction to be made depending on the effects? Should some of them considered to fall within the material scope of the decision, while some others would not?
If one of the parents dies and the issue of whether the child is his heir arises, it would be surprising to turn to the decision to determine what the rights of the child are in the succession. Surely, that should be determined by the applicable law, and it would seem that it should be determined in accordance with the choice of law rules of the forum. Does this reasoning apply to all the “effects of parenthood”?
In the final part of this post, the author raises the question of whether the extension of effects of a foreign decision concerns an issue of recognition or an issue of choice of law. The author then concludes that it seems to be a choice of law issue.
I agree with this conclusion. In my dissertation (in Dutch) on the meaning of the recognition and conversion of foreign adoptions in the Netherlands (A. Mens, Erkenning en omzetting van buitenlandse adopties in Nederland. Over de betekenis van beide fenomenen in het Nederlandse internationaal privaatrecht, Rijksuniversiteit Groningen 2024), available at the University Library of the University of Groningen, I argue that the recognition of a foreign (adoption) decision in theory means that legal or binding force is attributed to the decision in question. The (immediate) content of the foreign decision has to be recognised, but not its legal effects; those are subject to their ‘own’ rules of private international law.
In the case of a foreign decision on parentage, only the legal parent-child relationship has to be recognised. Any legal consequences associated with this relationship, for example concerning parental authority over the child, maintenance obligations, and inheritance rights, are not recognised, but, in principle, governed by the ‘normal’ rules of private international law—mostly conflict rules, sometimes recognition rules—that apply to each legal consequence. However, it could be determined that these effects are governed by the law, including the private international law, of the country where the foreign decision was made. In German, this is sometimes referred to as Wirkungserstreckung (extension of effects). The opposite view is Wirkungsgleichstellung (equalisation of effects), meaning, in short, that the effects are governed by the lex fori.
The choice of law issues raised by the author deserve further investigation.
Thank you for this interesting comment.
I certainly agree that some of the effects of the foreign decision should be determined by the choice of law rules of the requested State. For instance, the effects of a surrogacy or an adoption on succession.
But you go much farther, it seems, when you argue that ALL the effects of the foreign decision on parentage should be determined by the applicable law as determined by the choice of law rule of the requested State. I would think that some immediate effects of the decision should rather be governed by the decision itself.
An interesting example is the distinction that you propose between the establishment of the parent-right relationship and parental authority. I wonder whether parental authority could not be an effect of the decision governed by the decision itself, especially if the decision addresses the issue expressly.
How do you reconcile your view with Art. 10:110 of the Dutch civil code, which provides that the recognition of a foreign adoption entails the recognition of a) the parent-child relationship and b) parental authority?
In my view, the legal effects – otherwise then the establishment (and disruption) of family relationships itself – of a (foreign) decision on parenthood or adoption are, in theory, governed by their ‘own’ rules of private international law. These may be conflict-of-law rules or recognition rules. Ultimately, it is a matter of qualification: parental responsibility is not parenthood or adoption, and parenthood and adoption are not parental responsibility. For example, if a foreign decision on parenthood or adoption also includes a determination regarding parental authority, the latter decision should, in my opinion, be assessed separately based on the recognition rules for foreign decisions on parental authority. In other words, the foreign decision regarding parental authority should not be subjected to the recognition rules for foreign decisions on parenthood or adoption and, therefore, should not automatically be recognized based on or as a consequence of the recognition of the foreign decision on parenthood or adoption.
This brings me to Article 10:110 paragraph 1(b) of the Dutch Civil Code. This provision states that one of the legal effects of recognizing a foreign adoption is that the adoptive parent(s) automatically exercise parental authority over the adopted child. This parental authority does not need to be applied for but arises automatically, regardless of whether parental authority over the adopted child is vested in the adoptive parent(s) under the law of the country where the adoption was pronounced. In my dissertation, I argue that this constitutes a substantive rule. Without this substantive rule, the private international law rules—either conflict-of-law rules or recognition rules—concerning parental responsibility would apply. This would also be more logical. After all, the rule in Article 10:110 paragraph 1(b) of the Dutch Civil Code appears to be an absolute rule but cannot, of course, be absolute. An adopted child is only under the parental authority of the adoptive parent(s) insofar as no contrary decision on parental authority has been made or recognized, and no other legal fact or legal act occurs that alters the parental authority relationship. Furthermore, it is evident that parental authority only exists if and as long as the adopted child is still a minor. Additionally, Title 6 of Book 10 of the Dutch Civil Code contains no comparable rule for cases where an adoption is pronounced in the Netherlands. In such situations, parental authority is not automatically conferred under this title, but the question of whether parental authority over the adopted child vests in the adoptive parent(s) is left to the ‘regular’ (international) rules on parental authority applicable in the Netherlands. The same applies, for instance, to a foreign decision, legal fact, or legal act establishing or modifying family law relationships by virtue of parenhood that is recognized in the Netherlands (Articles 10:100 and 10:101 of the Dutch Civil Code): in such cases, the legal effects regarding parental authority are also governed by the ‘normal’ rules of the applicable (international) parental authority law in the Netherlands.
Finally, the rule laid down in Article 10:110 paragraph 1(a) of the Dutch Civil Code concerning the recognition of the legal parent-child relationship between the adopted child and the adoptive parent(s) speaks for itself, in my opinion. From the perspective of Dutch private international law, an adoption can only exist if this relationship has actually been established. Interestingly, however, under this provision, family law relationships automatically arise between the adopted child and the legal relatives of the adoptive parent(s). This is also the case when such relationships were not established in the country where the adoption was pronounced. In my view, this is not a matter of recognition but rather a conversion of the foreign adoption, in the sense that the relationships referred to here automatically arise in the Netherlands when a foreign adoption is recognized. This legal effect is therefore automatically added to the recognized foreign adoption.