Background
Two men domiciled in Canada entered into a surrogacy agreement with a woman in Canada in 2010. Following that arrangement, a child was born on February 28, 2011, in Ontario, conceived using sperm from one intended parent and eggs from a third-party donor. The Ontario Superior Court of Justice issued an order on March 29, 2011, declaring both men to be the child’s legal parents and severing any legal relationship between the surrogate mother and the child.
The intended parents sought recognition of the Canadian court order in France (exequatur) so that the decision would be enforceable and produce legal effects in French territory. Critically, they requested that the exequatur produce the effects of a full adoption (adoption plénière) under French law. France, however, prohibits surrogacy agreements under articles 16-7 and 16-9 of its Civil Code, based on constitutional principles protecting human dignity. The trial court initially rejected the recognition request, but the Paris Court of Appeal granted exequatur and declared that the Canadian judgment would produce the effects of a full adoption in France. The public prosecutor appealed to the Court of Cassation, arguing that the court of appeal had violated French public policy and improperly transformed the nature of the foreign judgment.
The Court’s Holding
The Court of Cassation, sitting in full assembly, reaffirmed that France’s prohibition on surrogacy is a core principle of French public policy, rooted in protecting human dignity against servitude and degradation. However, the Court held that this prohibition cannot be applied in isolation when evaluating exequatur for a foreign surrogacy filiation judgment. France’s public policy also encompasses rights guaranteed by the European Convention on Human Rights, particularly the child’s right to respect for private life under Article 8, which includes the right to establish the details of one’s identity and filiation. Invoking extensive precedent from the European Court of Human Rights—including the landmark 2014 case Mennesson v. France—the Court established that a blanket refusal to recognize a foreign filiation judgment resulting from surrogacy would disproportionately infringe the child’s fundamental right to private life.
The Court addressed a critical procedural question: when exequatur is sought for a foreign judgment establishing filiation from surrogacy, the French judge must verify, through the foreign decision’s reasoning or equivalent documents, that the parties to the surrogacy agreement—especially the surrogate mother—consented to the agreement, its terms, and its effects on parental rights. Here, although the Canadian order itself lacked detailed motivation, the petition submitted by the intended parents to the Canadian court, combined with the surrogacy contract itself (produced before the Court of Cassation), sufficiently established the surrogate mother’s informed consent and the identity of all parties. Accordingly, the Court found that the Canadian order was compatible with French procedural public policy and that exequatur should be granted.
However, the Court firmly rejected the Paris Court of Appeal’s characterization of the exequatur as producing full adoption effects. The Canadian judgment was not an adoption decision; it established filiation between the child and both intended parents. Once exequatur is granted, the foreign judgment is recognized as it is—establishing filiation—and it produces only the legal effects that attach to filiation under applicable law. To transform the judgment’s legal nature and grant it full adoption effects would constitute an impermissible revision of the foreign decision, violating article 509 of the Code of Civil Procedure. The Court therefore annulled the court of appeal’s decision insofar as it attributed adoption effects and remanded no new trial, instead ruling directly that the Canadian order should be recognized and could be transcribed in French civil registers as establishing the dual paternal filiation claimed.
Key Takeaways
- France’s blanket prohibition on surrogacy cannot automatically defeat exequatur of a foreign filiation judgment; rather, the court must reconcile the surrogacy prohibition with the child’s fundamental right to respect for private life and identity.
- When granting exequatur for a foreign surrogacy filiation judgment, French courts must verify through the foreign decision or supplementary documents that the surrogate mother gave informed consent to the agreement, its terms, and the relinquishment of parental rights.
- Exequatur of a filiation judgment cannot be transformed into a full adoption judgment; the foreign decision retains its legal character and produces only the effects inherent to the type of judgment it is.
- Procedures for recognizing foreign surrogacy-based filiation must be conducted with exceptional diligence and must prioritize the child’s best interests, avoiding excessive formalism.
Why It Matters
This decision represents a landmark reconciliation of France’s strong public policy against surrogacy with its obligations under the European Convention on Human Rights to protect children’s fundamental rights. By holding that exequatur can be granted to foreign surrogacy filiation judgments—provided proper safeguards regarding informed consent are met—the Court has opened a pathway for children born via international surrogacy to have their legal status recognized and registered in France, avoiding prolonged legal uncertainty that would harm their interests. This is of particular significance for same-sex couples and international families who use surrogacy in jurisdictions where it is lawful.
The decision also clarifies crucial boundaries: while respecting the child’s rights, the Court maintained robust procedural controls to detect exploitation of surrogates and to ensure that any recognition of filiation rests on genuine informed consent. By firmly rejecting the lower court’s attempt to recharacterize the judgment as a full adoption, the Court preserved the distinction between filiation (which the foreign judgment established) and adoption (a different legal mechanism), preventing French courts from overriding the original scope of the foreign decision. The ruling thus balances state interests in preventing surrogacy exploitation with human rights protections for vulnerable children in cross-border family arrangements.