A couple returns to France with a birth certificate issued abroad, naming two intended parents and a surrogate mother. At the town hall, they are refused registration. The reason for the refusal comes down to one sentence: any agreement concerning the procreation or gestation of a child on behalf of another person is null and void. This is the exact wording of Article 16-7 of the French Civil Code, and its consequences go far beyond the principle it sets out.
Nullity of surrogacy agreements: what Article 16-7 specifically covers
It is often said that surrogacy is “banned” in France. The legal wording is more absolute: the agreement is null and void by operation of law. The distinction matters. A ban may be subject to exceptions or exemptions. Nullity as a matter of public policy, confirmed by Article 16-9 of the French Civil Code, means that no French court can give effect to such a contract, even in part.
This nullity applies to both paid agreements and those presented as altruistic. Whether a woman agrees to carry a child for free or in exchange for payment makes no difference: the fact that the arrangement is unpaid does not make it valid. French law rejects the very principle of gestation on behalf of a third party, regardless of the financial arrangement.
The provision stems from the Bioethics Act of 29 July 1994, which codified a position already established by the Court of Cassation in a plenary session ruling on 31 May 1991. The High Court had relied on two principles: the non-availability of the human body and the non-availability of personal status. By supplementing Article 16-7 of the French Civil Code with a criminal penalty, the legislature closed off both avenues, civil and criminal.
Criminal penalties and the scope of France’s surrogacy ban
Article 227-12 of the French Criminal Code provides for a six-month prison sentence and a fine of €7,500 for anyone who acts as an intermediary between a person or couple seeking surrogacy and a woman willing to carry the child. The penalty targets the intermediary, not just the parties to the agreement.
In practice, criminal prosecutions in France remain rare. Litigation focuses on civil consequences, particularly the registration of foreign birth certificates. Intended parents who travel to a country where surrogacy is legal are generally not prosecuted on their return, but they face an administrative roadblock when seeking to establish parentage under French law.
The Constitutional Council confirmed that the extension of marriage to same-sex couples under the Act of 17 May 2013 did not change the scope of Article 16-7. Equal rights in marriage and adoptive parentage do not create a loophole in the surrogacy ban.
Parentage of children born through surrogacy abroad: registration and exequatur
The most contentious issue concerns children who have already been born. Refusing to recognize any parentage effectively penalized the child for a choice they did not make. In 2014, the European Court of Human Rights ruled against France on this basis, finding that the refusal to register the birth certificate violated the child’s right to respect for private life.
Since then, French case law has distinguished between two procedures that do not have the same effects:
- Registration of a foreign birth certificate in the French civil registry, which concerns whether the certificate reflects the facts (in particular, the intended father’s biological parentage).
- Exequatur of a foreign judgment, which requires the court to verify that the proceedings abroad were conducted properly, including that the surrogate gave her free and informed consent.
These two routes require different documents and checks. The evidence file, particularly the consents obtained in the country of origin, becomes a practical concern for the families involved.
Recognizing parentage does not amount to legalizing surrogacy
This point is often misunderstood. When a French court orders a birth certificate to be registered, it does not validate the surrogacy agreement. It acknowledges a factual situation: a child exists, has a biological link to at least one intended parent, and the child’s best interests require them to have complete civil status in France.
In practice, the surrogate mother is not listed as a parent in the French civil registry, even if she appears on the foreign birth certificate.
Surrogacy and public policy: the limits maintained under French law
The ban set out in Article 16-7 rests on a foundation of principles that the legislature has not overturned in successive revisions of the bioethics laws. Three pillars underpin this position:
- The non-availability of the human body: gestational capacity cannot be made the subject of a contract.
- The non-availability of personal status: parentage cannot be negotiated through a private agreement.
- Human dignity: the risk of treating the woman carrying the child as an instrument is considered incompatible with this principle.
These grounds explain why proposals to legalize surrogacy, even in an “ethical” or regulated form, face strong legal resistance. Each proposed revision of the bioethics laws reignites the debate, but the legislature has not amended Article 16-7.
The situation varies across European countries. Some allow altruistic surrogacy under strict conditions, while others ban it entirely. France is firmly in the camp of an absolute ban, with one important qualification: recognition of the child’s parentage is advancing through case law, even as the ban on surrogacy agreements remains in place.
French law therefore draws a line between protecting a child who has been born and refusing to validate the process that led to their birth.
