On the request for review submitted in the interest of the law by its Procureur-Général:

The Court: In view of articles 6 and 1128, in conjunction with article 353, Code civil:

Given that when a woman undertakes, whether gratuitously or for payment, to conceive and bear a child and abandon it on birth this agreement is incompatible with both the principle d’ordre public that no disposition may be made of the human body and the principle that a person’s civil status is not to be commercialised;

Given that according to the decision below M. Y, whose wife Mme X was incurably sterile, donated his sperm to another woman who conceived a child by artificial insemination and that the child was certified at its birth as being the child of Y. … without any mention of its actual mother;

Given that, in declaring that the adoption of the child by Mme Y was final, the decision below stated that in the light of current technology and morality, surrogate motherhood must be considered lawful and consistent with ordre public and that the adoption was in the interests of the child who for virtually all of its life had been brought up by M. and Mme Y in their home;

Given that in so deciding when the adoption was only the culmination of an arrangement designed to permit a couple to treat as a member of the family a child conceived pursuant to a contract whereby the mother was to give up her child on its birth in a manner inconsistent with the principle that the human body and its civil status are not subject to disposition, and thus constituted an abuse of the institution of adoption, the court of appeal violated the texts cited above;

For these reasons QUASHES and annuls the decision handed down by the Court of Appeal of Paris on 15 June 1990, without remand and purely in the interest of the law.

Subsequent Developments

Assemblée plénière, 31/05/1991 : This judgement solemnly condemns maternity by substitution and related contracts, reaffirming in so doing the terms the court had used in a judgement of 13 December 1989 (Civ.1, Bull. no 387) in approving the dissolution of an association whose objectives were to facilitate the signature and performance of contracts of that type. This judgement also clarifies that of 1991 in relation to the fact that such contracts impinge upon not only the unsaleable nature of the human body, but also upon the status of persons, since, according to the judgement of 1989, they have as their objective “to cause to come into the world a child whose status will not correspond with his real lineage”. This position has been adopted by legislation, since Article 16-7 of the Civil Code now lays down the nullity of “any agreement providing for reproduction or gestation for the account of a third party”, Article 227-12 of the Penal Code providing for sanctions against any person having procured, “either for gain or by gift, promise, threat or abuse of authority, that parents, or one of them, abandon a born child or one still to be born”. Moreover, a more recent judgement (Civ1, 09 December 2003, Bull. no 252) based itself upon “the general principles of the Civil Code and in particular its Article 16-7” when it approved the lower courts which had refused to authorise the adoption of a child born of a “substitute mother”, on the grounds that maternity for a third party constituted a misappropriation of the institution of adoption.