French Supreme Court Rules Foreign Surrogacy Does not Violate Public Policy
This post was written by Mathilde Codazzi, who is a doctoral student at Paris II Pantheon-Assas.
On 14 November 2024, the French Cour de cassation issued a decision regarding the compliance of a foreign judgment establishing parentage with regard to the intended mother of a child born to a surrogate with French international public policy (see also the press release).
Background
A French woman entered alone into a surrogacy contract in Canada. The child, who was born in 2019, is not biologically related to her. The Supreme Court of British Columbia, in a judgment of 1 February 2021, ruled that the intended mother is the child’s only parent and transferred her parental rights.
Procedure
The intended mother came back to France with the child and sought both a declaration of enforceability of the Canadian decision before French Courts and that the effects of a full adoption (“adoption plénière”) be granted to the decision under French law. The judgment of the first instance court was upheld by the Court of Appeal in a judgment of 18 April 2023, which considered notably that the absence of a biological link between the child and the intended mother did not amount to proof of the latter’s fraudulent behavior. It also granted the decision the effects of a full adoption under French law.
Issue
The issue is clearly outlined by the French Supreme Court. It is whether the recognition of a foreign judgment establishing parentage, following surrogacy, with a person who is not biologically related to the child contravened French international public policy.
Judgment
In a judgment of 14 November 2024, the French Supreme Court ruled that a foreign judgment establishing parentage with a person who is not biologically related to the child born to a surrogate is not contrary to French international public policy.
After thoroughly recalling the conditions under which a foreign judgment shall be enforced in France, the Court explains why the Canadian decision complies with French international public policy.
First, the rights guaranteed by the European Convention on Human Rights are included French international public policy and Article 8 (right to respect of one’s private and family life), as interpreted by the Court of Strasbourg in a consultative opinion of 10 April 2019, prevents the refusal of recognition of parentage based solely on the circumstance that the child was born to a surrogate, regarding the biological parent as much as the intended parent, quoting its judgment of 4 October 2019 (which concerned the transcription of the foreign birth certificate and not the recognition of parentage though, the issue being the possibility to subsequently dispute parentage).
Secondly, the court rules that no essential principle in French law prevents the recognition of a parentage that is not consistent with biological reality, for three reasons. First, French law of parentage allows the establishment of parentage links inconsistent with biological reality, though based on “biological likelihood” (“vraisemblance biologique”). Second, this is even truer since the admission of medically assisted reproduction (AMR) involving a third donor and the subsequent establishment of parentage inconsistent with biology. Third, since the admission of AMR for couples of women, French law allows for parentage to be established with regard to the woman who did not give birth, on the sole base of their common parenthood intent (“projet parental commun”).
Therefore, the Canadian decision is not contrary to French international public policy, subject to the reason requirement which was laid down by the Supreme Court in an earlier judgment of 2 October 2024 (see our report here), and can be enforced in France. Henceforth the parentage link is recognized as such and the foreign judgment cannot be granted the effects of a full adoption (“adoption plénière”), as the Court already ruled in the same earlier judgment.
Comment
The decision that surrogacy does not, as such, violate French public policy must be read in combination with the earlier judgment of 2 October 2024, which ruled that a foreign judgment establishing parentage on this basis can nevertheless violate procedural public policy if it lacks appropriate reasons.
Still, the clear statement that a foreign judgment recognising the effects of a surrogacy does not violate French public policy will shock many in France. It is a logical consequence of the decisions of the European Court of Human Rights, but it is noteworthy that the reasons given by the Cour de cassation in support of the outcome are not limited to references to the decisions of the Strasbourg court, but include additional grounds, in particular the statement that there is no essential principle of French law requiring that parenthood corresponds to biological reality. This suggests that the French high court is fully endorsing the outcome of the case.
The Cour de cassation will render another judgment on the recognition of foreign surrogacies later this month. Stay tuned…