French Supreme Court Confirms Surrogacy Foreign Judgments Are Not Per Se Contrary to International Public Policy

This post was contibuted by Mathilde Mathilde Codazzi-Nodet, who is a PhD candidate at Paris II Panthéon-Assas University.

On 3^rd July 2026, in two major decisions, the plenary assembly (assemblée plénière) of the French Supreme Court (Cour de cassation), its most solemn chamber which includes the president of the court and the president of all six chambers, declined to revisit a judgement of the first civil chamber, which had ruled in 2024 that foreign surrogacy judgments comport with French public policy.

Although criticism of the Cour de cassation judgments by French scholars is not uncommon, the criticism of the 2024 judgments was particularly strong, as the court was expressly called to overturn them.

Central to the critique was the fact that surrogacy is expressly prohibited by Articles 16-7 and 16-9 of the Civil Code, and that allowing the recognition of foreign surrogacy judgments was enabling an evasion of the French prohibition. It was also argued that the French lawmaker had clarified that it was against such recognition by reforming Article 47 of the French Civil Code – although the reform could have been clearer. First, it concerned transcription, not enforcement, and second, it only permits the transcription of those birth certificates that relate facts which reflect reality, in accordance with French law.

After an appeal had been lodged against a judgment which had declared enforceable Canadian surrogacy judgments without debating the issue of their compatibility with substantive public policy, the Public Prosecutor of the Cour de cassation asked the Court to raise it of its own motion.

Given the highly divergent positions in the legal academy and beyond, the Court decided that the decision would be made this time by the Plenary Assembly.

Facts

A French same-sex male couple residing in Canada had three children through two surrogacy contracts. The first child was born on 28 February 2011 (1^st case), followed by twins on 26 June 2013 (2^nd case). All three children were conceived using the gametes of one of the two men and eggs provided by an anonymous donor.

In two judgments delivered on 29 March 2011 and 1^st August 2013, the Superior Court of Justice of Ontario (Canada) declared that the two men were the children’s legal parents by operation of law and that the surrogate was not their legal mother. It also ordered that birth certificates be issued accordingly.

The couple sought a declaration of enforceability (exequatur) of these judgments in France.

Procedure

The first instance court refused to declare the Canadian judgments enforceable in two decisions delivered on 22 March 2023.

In two judgments of 4 June 2024, the Paris Court of Appeal reversed those decisions and declared the Canadian judgments enforceable in France. First, it considered that the applications submitted by the couple to the Canadian court sufficiently compensated for the lack of reasons in the judgments. This is an application of the solution adopted by the 1^st Civil Chamber of the Supreme Court in its judgment of 2 October 2024, previously discussed on this blog. Second, it held that, once enforceable, the Canadian judgments would produce in France the legal effects of a full adoption (adoption plénière).

The Public Prosecutor of the Paris Court of appeal appealed against these judgments.

First, it argued that the Court of Appeal should not have granted enforcement, since neither the reasoning of the Canadian judgments nor the documents produced made it possible to identify the respective roles of the persons involved in the parental project or to ascertain that the surrogate had consented both to the arrangements provided for in the surrogacy agreement and to their legal consequences, as required by the 1^st civil chamber of the Supreme Court’s decision of 2 October 2024. Accordingly, compliance with French international procedural public policy could not be verified.

Secondly, according to the Public Prosecutor, attributing to the Canadian judgments the effects of a full adoption would amount to review them on the merits, which is prohibited.

However, the Prosecutor before the Supreme Court invited it to raise, of its own motion, the issue of the compatibility of the Canadian judgments with French substantive international public policy. He argued that the judgments were contrary to such public policy because French law prohibits surrogacy. He further submitted that fundamental rights are not incorporated into French international public policy and their respect should therefore be reviewed separately. Finally, he observed that nothing in the case law of the European Court of Human Rights requires that enforcement be granted to such foreign judgments, since the means by which parentage is recognized fall within Contracting States’ margin of appreciation.

Legal Issues

The Plenary Assembly of the Supreme Court was therefore asked to answer three questions:

Are foreign judgments establishing parentage following a surrogacy contract contrary to French substantive international public policy?
In the present cases, were the Canadian judgments contrary to French procedural international public policy?
If such a foreign judgment is declared enforceable in France, may it produce the legal effects of a full adoption?

Decisions

On 2 July 2026, the French Supreme Court issued two identical decisions. It held that foreign judgments establishing parentage following a surrogacy contract are not contrary to French substantive international public policy. In the present cases, the Canadian judgments complied with French international procedural public policy. However, they cannot produce the legal effects of a full adoption.

After recalling the conditions governing the enforcement of foreign judgments, the Supreme Court addressed each of the three legal issues in turn.

Compatibility with French substantive international public policy

With respect to the first issue, the Supreme Court declined to raise, of its own motion, the ground suggested by the Prosecutor.

The Court began by identifying the competing interests that had to be reconciled. It ruled that both the prohibition of surrogacy under French law (Articles 16-7 and 16-9 of the Civil Code) and the fundamental rights protected by the ECHR form part of French international public policy, and must therefore be balanced. On the one hand, the prohibition of surrogacy constitutes a fundamental principle of French law, deriving from the constitutional principle of safeguarding human dignity. On the other hand, the child’s right to respect for private life, as interpreted by the European Court of Human Rights, likewise forms part of French international public policy (ECtHR, Mennesson v. France, 26 June 2014; Advisory Opinion of 10 April 2019).

The Court then proceeded to the balance, by examining the consequences that a refusal to grant exequatur would have for the establishment of parentage under French law. It found that, under current French law, no alternative mechanism can satisfy the requirements of legal certainty, effectiveness and promptness laid down by the European Court of Human Rights in its Advisory Opinion of 10 April 2019.

First, the transcription of the birth certificates on the French civil registry is impossible without exequatur, since they are inseparable from the foreign decisions on which they are based. Second, adoption is not available either to the biological father—because under French law a person cannot adopt his or her own descendant—or to his spouse, as long as the biological father’s parentage had not yet been recognized in France. Third, without transcription, no French birth certificate exists on which either an acknowledgement of paternity or of possession d’état could be recorded. Fourth, granting only partial exequatur—limited to the parent-child relationship with the biological father—would, in the Court’s words, “distort the foreign judgment, which, following an overall assessment of the situation, established parentage on the basis of a common parental project.”

The Supreme Court further observed that exequatur proceedings enable French courts to exercise genuine judicial scrutiny. Such scrutiny makes it possible to sanction “any other infringement of French substantive international public policy”, thereby combating child trafficking and fraud in international adoption while safeguarding the child’s right of access to his or her origins.

Compatibility with French procedural international public policy

Turning to the second issue, the Supreme Court overruled the judgments of the Paris Court of Appeal because it failed to verify adequately whether the Canadian judgments complied with French international procedural public policy, in accordance with the requirements set out in the judgment of 2^nd October 2024.

Nevertheless, in the interests of the proper administration of justice, the Court itself carried out that verification. It found that the surrogacy agreements, produced by the couple during the proceedings before the Supreme Court, together with the material contained in the applications submitted to the Canadian court, made it possible to establish that the surrogate had freely consented to the arrangement and had validly renounced her parental rights.

Effects of the enforceable foreign judgments

Finally, about the third issue, the Court held that parentage established by the foreign judgments must be recognized as such and produce the legal effects attached to it under the law governing each parent-child relationship, and not those of a full adoption under French law – finding of the 1^st Civil Chamber of the Supreme Court on 2 October 2024 and previously commented on this blog.

Commentary

This is the 5^th time since 1991 that the plenary assembly of the French Supreme Court has ruled on recognition of foreign judgement establishing parentage in the context of surrogacy. Of all these decisions, the present decisions adopt the most liberal approach.

These awaited decisions should be read in the light of the earlier mentioned case law of the 1^st Civil Chamber of the Supreme Court.

From a methodological perspective, the Supreme Court confirms that the protection of fundamental rights forms an integral part of French international public policy and is not subject to a separate assessment. In this respect, it endorses the approach already adopted in the judgment of 14 November 2024.

On the substantive level, the judgments confirm the solutions reached on 2 October 2024 about the two issues previously identified. First, the requirements for verifying whether a foreign judgment complies with French international procedural public policy: in particular, production of the surrogacy agreement seems sufficient to establish the surrogate’s informed consent. Second, the effects attached to the enforcement, which are those attached by the applicable law.

The position adopted with respect to substantive international public policy is, however, not entirely identical to that of the 14 November 2024 decision. Whereas the 1^st Civil Chamber had only examined the compatibility of the intentional parent-child relationship with French substantive international public policy, the full court frames the issue more broadly by explicitly acknowledging that the parentage in question results from a surrogacy arrangement.

More generally, French case law continues to go beyond the minimum requirements imposed by the ECtHR by aligning the legal status of the biological parent and that of the intended parent.

Finally, one last aspect must be noted. The Supreme Court’s reasoning does not suggest that domestic recognition of the parent-child relationship is entirely impossible under French law. Rather, it rests on the current absence of a specific judicial procedure capable of satisfying the requirements of effectiveness, legal certainty and promptness laid down by the European Court of Human Rights.

Now the focus should turn to a possible reaction of the French legislator, which remains strictly opposed to surrogacy.