Surrogacy varies greatly in legality and social acceptance across the globe. In France, surrogacy holds a unique legal and cultural position that reflects broader national attitudes toward family, bioethics, and reproductive technology.
Legal landscape of surrogacy in France
Current Legislation: Surrogacy is not legal in France. Surrogacy has been explicitly prohibited in France since 1994. French law considers it against the principle of respect for the human body, which cannot be used for commercial or contractual purposes. The Civil Code and the Bioethics Law reinforce this stance, making any surrogacy agreement legally void.
International Surrogacy: Despite the French domestic ban on surrogacy, French couples or international couples in which one person is French, often turn to international surrogacy. This raises complex legal issues upon their return to France, especially concerning the recognition of parent-child relationships (parental rights) established abroad in the context of surrogacy.
Since the passing of law n°2021-1017 of 2 August 2021, the French administration refuses to transcribe foreign birth certificates that do not correspond to the « biological truth ». This means that a foreign birth certificate that mentions two mothers or two fathers or a mother that did not actually give birth will not entirely be recognised and enforced in France.
The legal basis of the "biological truth" arguments is article 47 of the French Civil code that provides:
"Acts on civil status of French nationals or foreigners made in a foreign country and drawn up in the forms customary in that country are deemed authentic, unless [...] the facts declared therein do not correspond to reality. This is assessed in the light of French law."
Recent Developments: The European Court of Human Rights has challenged France's position on surrogacy, emphasizing the rights of children born through surrogacy abroad to have their parentage recognized in France for the sake of their identity and well-being.
Whilst French law as it stands today does not authorize the transcription of a foreign birth certificate in a surrogacy context, two other routes exists to establish parental rights:
Exequatur (recognition and enforcement procedure in France): following various lower court decisions refusing reconigition and enforcement in France of foreign surrogacy judgments, the Versailles Court of Appeal, 20 Feb. 2024 (case n° 23/03902) and the Aix-en-Provence Court of Appeal, 24 Jan. 2024 (case n°21/02708) authorized the exequatur of Canadian surrogacy judgments regarding parental rights
Adoption procedure: if no foreign judgment on parental rights has been handed down, the second parent has to opt for a plenary adoption in France of the child born via surrogate. The French Supreme Court has authorized adoption of a child born via surrogate (Supreme Court, 5 July 2017, case n°16-16.455, Supreme Court, 4 November 2020, case n°19-50.042). However, if the foreign birth certificate mentions the surrogate's name, only a simple adoption will be possible.
Personal Stories
The human aspect of surrogacy brings a multitude of stories, from hopeful parents to surrogates:
Intended Parents: Many French couples share their journeys of turning to countries where surrogacy is legal, describing the emotional and financial challenges they face before and after the birth of the child. The hurdles they face with the French administrative can be numerous.
Surrogates: Though less common, narratives from surrogates—both French women who choose to help others abroad and foreign surrogates who assist French couples—offer insight into the personal motivations and ethical considerations of being a surrogate.
Caterina is a native English speaking international family lawyer in France, specializing in surrogacy in France.