French Court Denies Recognition to American Surrogacy Judgement
On 26 February 2009, the Paris Court of Appeal denied recognition to a couple of American judgments which had sanctioned a surrogacy. The Court held that it was contrary to French international public order.
In this case, a French couple had found a surrogate mother in Minnesota who had accepted to carry their child. After Ben was born, the parties had obtained on 4 June 2001 two judgments from a Minnesota court, the first finding that that the child had been abandonned by the American surrogate mother, the second ruling that he was adopted by the French couple. A birth certificate had then been delivered by the relevant Minnesota authorities.
When the couple came back to France, they tried to have the child registered as theirs on the relevant French registry. The French public prosecutor initiated proceedings to have this registration cancelled.
Both the French first instance court and the Paris Court of Appeal ruled against the couple. The debate focused on whether the American judgments could be recognised in France (it does not seem that the issue of whether the birth certificate could be recognised was raised). The Paris Court of appeal noticed that there were no international convention between the U.S. and France on the recognition of foreign judgments, and that it followed that the French common law of judgments as laid down by the Cour de cassation in Avianca applied.
The Court only explored whether one of the conditions was fulfilled, namely whether the foreign judgments comported with French international public order. It simply held that it did not, as the Civil code provide that surrogacy is forbidden in France (Article 16-7 of the Civil Code), and that the rule is mandatory (d’ordre public: see Article 16-9 of the Civil Code). In truth, the Code certainly provides that the rule is mandatory in France, but it does not say whether the rule is also internationally mandatory. The Court rejected arguments to the effect that Article 8 ECHR or the superior interest of the child commanded a different outcome.
I had reported earlier about another judgment of the same Paris Court of Appeal (indeed, the same division of the court, which is specialized in private international law matters) which had accepted to recognize a Californian judgment. This decision had been overruled by the Cour de cassation, but on an issue of French civil procedure which was unrelated.
This is quite an interesting outcome, although not entirely surprising to those of us who have studied law in a civil-law system. (It’s often said, rightly or wrongly, that public policy is “dead” in the Common Law.) The child, an American citizen and perhaps not now a French citizen (depending on the status of the putative father and the rights of an _enfant naturel_ under current French law), may have a conflict of status. (One remembers that before the ECHR acted, a person who had undergone a sex change operation and who happened to have two European nationalities could be female in one country and male in the other.)
I always suggest to those considering international adoption or surrogacy and faced with doubtful status questions to acquire a domicile of choice, or at least an habitual residence, in the country of adoption long enough for the child to acquire vested rights.
The point you are making about vested rights is interesting. Now, of course, it depends on how the forum takes them into account, especially for the purpose of public policy. In France, the traditional solution is indeed that public policy is weaker when the connections with the forum are fewer. The problem is that, in family matters, it is enough that the parties are either resident in France, or French nationals, to be considered as “protected” by French public policy. So I am not sure your strategy would work, since the couple would remain French.
Thank you for this post! Is there a way to get the actual decision? Is it published already?
The decision was published at the Semaine Juridique Edition Générale of 22 June 2009. It should be available on Lexis-Nexis, but it seems that they have stopped posting this journal this month.
Congratulations. In Spain the things are worse. The Dirección General of Registros (Civil and Ownership) and the Notariado in its Resolution of Febrery 19, 2009 ordered to the Registro Civil at the Consulado of Spain in Los Angeles (California) entry the inscription of birth of two childs that two spanish married men obteined by surrogacy gestatión (ban in Spain. Articulo 10.1 Ley 14/2006, of May 26) being the parents the two married men and keep silent about the woman who was the gestate mother.
Following up the comment on the tension between vested rights of the child and public policy of the forum, I am reminded that Brussels I (the Regulation) and Brussels II (family law enforcement of judgments) have led to some forum shopping within the EU. (The possible use of EU judgments recognising third-country court orders to effect recognition in less hospitable EU states has been discussed elsewhere on this Web site.)
It seems to me that clever use of the adoption law of a US state (remembering Bedinger v. Graybill’s Executor http://bit.ly/c5XRz adoption law can be quite liberal) and acquisition of habitual residence, coupled perhaps with possession of U.S. and not French nationality by the child, would increase the likelihood of a favourable outcome. Note the results of surrogacy recognition proceedings in English courts http://bit.ly/nhuWn , and the likelihood that the supposed “interests of the child” will trump a foreign public policy. While there is never any assurance of success against a determined, adversarial government agency the couple or, for that matter, the single parent who is well advised on the conflicts issues is likely to have a better result. The key elements, at least judging from published reports, would seem to be length of residence in an hospitable jurisdiction and wealth of the parties — enabling factors that may well help weaken the ordre public connection in the manner noted above.