FIFTH SECTION







                                    CASE OF MENNESSON v. FRANCE


                                    (Application no. 65192/11)








                                             JUDGMENT

                                            (Extracts)




                                            STRASBOURG


                                           26 June 2014


                                               FINAL


                                            26/09/2014


    This judgment has become final under Article 44 § 2 of the Convention. It may be subject to
                                        editorial revision.

In the case of Mennesson v. France,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ganna Yudkivska,
          Vincent A. de Gaetano,
          André Potocki,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 10 June 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 65192/11) against the French Republic lodged with
the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two French nationals, Mr Dominique Mennesson (“the first applicant”)
and Ms Sylvie Mennesson (“the second applicant) and two US nationals, Ms Valentina Mennesson and Ms
Fiorella Mennesson (“the third and fourth applicants”), on 6 October 2011.

2.  The applicants were represented before the Court by Mr Patrice Spinosi, of the Conseil d’Etat
and Court of Cassation Bar. The French Government (“the Government”) were represented by their
Agent, Ms Edwige Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs.

3.  On 12 February 2012 the application was communicated to the Government and the President of the
Section decided that the proceedings in the present case should be conducted simultaneously with
those in the case of Labassee v. France (application no. 65941/11).

4.  The applicants and the Government each filed written observations on the admissibility and
merits of the case.

5.  On 10 October 2013 the President of the Section decided, under Rule 54 § 2(a) of the Rules of
Court, to put additional questions to the applicants and the Government, who replied on 19 and 21
November 2013 respectively.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The first and second applicants were born in 1965 and 1955 respectively. The third and fourth
applicants were born in 2000. They all live in Maisons-Alfort.

A.  Birth of the third and fourth applicants

7.  The first and second applicants are husband and wife. They have been unable to have a child of
their own because the second applicant is infertile.

8.  After a number of unsuccessful attempts to conceive a child using in vitro fertilisation (IVF)
with their own gametes, the first and second applicants decided to undergo IVF using the gametes of
the first applicant and an egg from a donor with a view to implanting the fertilised embryos in the
uterus of another woman. Accordingly, they went to California, where the process is legal, and
entered into a gestational surrogacy agreement.

The applicants specified that, in accordance with Californian law, the “surrogate mother” was not
remunerated but merely received expenses. They added that she and her husband were both high
earners and therefore had a much higher income than the applicants and that it had been an act of
solidarity on her part.

9.  On 1 March 2000 the surrogate mother was found to be carrying twins and, in a judgment of 14
July 2000, the Supreme Court of California, to which the first and second applicants and the
surrogate mother and her husband had applied, ruled that the first applicant would be the “genetic
father” and the second applicant the “legal mother” of any child to whom the surrogate mother gave
birth within the following four months. The judgment specified the particulars that were to be
entered in the birth certificate and stated that the first and second applicants should be recorded
as the father and mother.

10.  Twins – the third and fourth applicants – were born on 25 October 2000 and their birth
certificates were drawn up in accordance with the terms stated in paragraph 9 above.

B.  Refusal by the French consulate to register the particulars of the birth certificates

11.  In early November 2000 the first applicant went to the French consulate in Los Angeles to have
the particulars of the birth certificates entered in the French register of births, marriages and
deaths and the children’s names entered on his passport so that he could return to France with
them.

12.  The applicants stated that many French couples in their situation had previously succeeded in
carrying out that procedure. The consulate rejected the first applicant’s request, however, on the
grounds that he could not establish that the second applicant had given birth and, suspecting a
surrogacy arrangement, sent the file to the Nantes public prosecutor’s office.

C.  Investigation in respect of the first and second applicants

13.  As the US Federal Administration had issued US passports for the twins on which the first and
second applicants were named as their parents, the four applicants were able to return to France in
November 2000.

14.  In December 2000 a preliminary investigation was carried out at the request of the public
prosecutor’s office.

15.  In May 2001 an investigation was commenced against a person or persons unknown for acting as
intermediary in a surrogacy arrangement and in respect of the first and second applicants for false
representation infringing the civil status of children.

16.  On 30 September 2004, in accordance with the submissions of the Créteil public prosecutor, the
investigating judge gave a ruling of no case to answer on the grounds that the acts had been
committed on US territory, where they were not classified as an offence, and therefore did not
constitute a punishable offence in France.

D.  Proceedings in the civil courts

17.  In the meantime, on 25 November 2002, on the instructions of the public prosecutor’s office,
the particulars of the birth certificates of the third and fourth applicants had been recorded in
the central register of births, marriages and deaths in Nantes by the French consulate in Los
Angeles.

18.  However, on 16 May 2003 the Créteil public prosecutor instituted proceedings against the first
and second applicants in the Créteil tribunal de grande instance to have the entries annulled and
the judgment recorded in the margin of the entries thus invalidated. He observed that an agreement
whereby a woman undertook to conceive and bear a child and relinquish it at birth was null and void
in accordance with the public-policy principle that the human body and civil status are
inalienable. He concluded that as the judgment of the Supreme Court of California of 14 July 2000
was contrary to the French conception of international public policy and of French public policy,
it could not be executed in France and that the validity of civil-status certificates drawn up on
the basis of that judgment could not be recognised in France.

1.  Judgment of the Créteil tribunal de grande instance of 13 December 2005, judgment of the Paris
Court of Appeal of 25 October 2007 and judgment of the Court of Cassation of 17 December 2008

19.  By a judgment of 13 December 2005 the Créteil tribunal de grande instance declared the action
inadmissible. It found that “the entries had been recorded on the sole initiative of the public
prosecutor with the purpose, since avowed, of bringing proceedings to have the entries annulled.”
It concluded from this that “an action by the public prosecutor on grounds of public policy which
he himself ha[d] infringed could not be deemed admissible where the provisions of Article 47 of the
Civil Code on which he [relied] allowed him to verify the validity of the certificates in any
respect and to reject any request for registration that would render them binding in France”.

20.  The public prosecutor’s office appealed to the Paris Court of Appeal, which upheld the lower
court’s judgment on 13 December 2005. The Court of Appeal also considered the public prosecutor’s
action for annulment of the entries in the Nantes central register of births, marriages and deaths
inadmissible as a matter of international public policy. It substituted its own grounds for that
decision, however, finding that the contents of the entries were accurate as regards the judgments
of the Supreme Court of California of 14 July 2000 and that the public prosecutor’s office was not
disputing the fact that the judgment was binding on France or that, under Article 47 of the Civil
Code, the certificates drawn up in California in accordance with the usual procedures in that State
should be deemed valid.

21.  On 17 December 2008 the Court of Cassation (First Civil Division) quashed that judgment on the
grounds that the public prosecutor’s office had an interest in bringing proceedings for annulment
of the entries since, as established by the Court of Appeal, the birth certificates in question
could only have been drawn up following a surrogacy arrangement. It remitted the case to the Paris
Court of Appeal with a differently constituted bench.

2.  Judgment of the Paris Court of Appeal of 18 March 2010

22.  By a judgment of 18 March 2010 the Paris Court of Appeal overturned the judgment remitted to
it, annulled the entries pertaining to the birth certificates and ordered its judgment to be
recorded in the margin of the invalidated birth certificates.

23.  Regarding the admissibility of the action brought by the public prosecutor’s office, the court
found that it could not be seriously alleged that the prosecution authorities had contravened
public policy or disrupted peaceful family relations by requesting that the contents of an entry
that they themselves had ordered be annulled, since the purpose was to frustrate the effects of a
foreign civil status which they considered contrary to French public policy or to guard against an
application to have the entries recorded.

24.  The Court of Appeal ruled on the merits as follows:


“ ... The birth certificates were drawn up on the basis of the Supreme Court of California’s
judgment of 14 July 2000 which declared [the first applicant] the genetic father and [the second
applicant] the legal mother of any child to which [the surrogate mother] gave birth between 15
August and 15 December 2000. The civil-status documents are therefore indissociable from the
decision underlying them and the effectiveness of that decision remains conditional on its
international lawfulness.


Recognition, on national territory, of a decision delivered by a court of a State that is not bound
to France by any convention is subject to three conditions: the indirect jurisdiction of the
foreign court based on the connection between the court and the case; compliance of the merits and
procedure with international public policy; and absence of circumvention of the law.


It has been established in the present case that following a surrogacy agreement [the surrogate
mother] gave birth to twins who were conceived from the gametes of [the first applicant] and of a
third party and were relinquished to [the first and second applicants].


Under Article 16-7 of the Civil Code, whose provisions deriving from Law no. 94-653 of 29 July
1994, and not amended by Law no. 2004-800 of 6 August 2004, are a matter of public policy by virtue
of Article 16-9 of the same Code, any agreement concerning reproductive or gestational surrogacy is
null and void. Accordingly, the judgment of the Californian Supreme Court, which indirectly
validated a surrogacy agreement, contravenes the French concept of international public policy.
Consequently, without having to ascertain whether the law has been circumvented, the entries in the
French central register of births, marriages and deaths of the particulars of the US birth
certificates naming [the second applicant] as the mother of the children must be annulled and the
present judgment recorded in the margin of the invalidated birth certificates.


[The applicants] cannot seriously claim that they have not had a fair hearing; nor do they have
justifiable grounds for arguing that this measure contravenes provisions laid down in international
conventions and domestic law. The concepts to which they refer, in particular the child’s best
interests, cannot allow them – despite the practical difficulties engendered by the situation – to
validate ex post facto a process whose illegality, established first in the case-law and
subsequently by the French legislature, is currently enshrined in positive law. Furthermore,
non-registration does not have the effect of depriving the two children of their US civil status or
calling into question their legal parent-child relationship with [the first and second applicants]
recognised under Californian law ...”.

2.  Judgment of the Court of Cassation of 6 April 2011

25.  The applicants appealed on points of law, submitting that the children’s best interests –
within the meaning of Article 3 § 1 of the International Convention on the Rights of the Child –
had been disregarded and complaining of a breach of their right to a stable legal parent-child
relationship and, further, of a violation of Article 8 of the Convention taken alone and in
conjunction with Article 14 of the Convention. They submitted, further, that the decision of a
foreign court recognising the legal parent-child relationship between a child and a couple who had
lawfully contracted an agreement with a surrogate mother was not contrary to international public
policy, which should not be confused with domestic public policy.

26.  At a hearing on 8 March 2011 the advocate-general recommended quashing the judgment. He
expressed the view that a right lawfully acquired abroad or a foreign decision lawfully delivered
by a foreign court could not be prevented from taking legal effect in France on grounds of
international public policy where this would infringe a principle, a freedom or a right guaranteed
by an international convention ratified by France.

He noted in particular that in Wagner and J.M.W.L. v. Luxembourg (no. 76240/01, 28 June 2007) the
Court had taken account, in its examination of the case under Article 8 of the Convention, of an
“effective family life” and “de facto family ties” between a single mother and the child she had
adopted in Peru without attaching any importance to the fact that the former had gone abroad in
search of a legal system which would allow her to obtain what the law of her country of origin
refused her. In his opinion, if the same rationale were applied in the present case, even where
domestic law had been circumvented a legal relationship lawfully created abroad could not be
prevented from producing the relevant legal effects where it concerned an effective family set-up
and allowed it to function and evolve in normal conditions from the standpoint of Article 8 of the
Convention. He also observed that the third and fourth applicants had been living in France for ten
years and “[were being] brought up there by genetic and intended parents in a de facto family unit
in which [they were receiving] affection, care, education, and the material welfare necessary to
their development” and that this effective and affective family unit – fully lawful in the eyes of
the law of the country in which it had originated – [was] “legally clandestine”, “the children
having no civil status recognised in France and no parent-child relationship regarded as valid
under French law”. As to whether that state of affairs infringed their “right to a normal family
life”, the advocate-general replied as follows:


“At this stage two answers are possible: either – somewhat theoretically and largely paradoxically
– the refusal to register the birth particulars is inconsequential and does not substantially
affect the family’s daily life, which means that registration is a mere formality and it is
therefore difficult to see any major obstacle in the circumstances to recording the details of
certificates with such minimal legal effect that it is inconceivable that they are capable in
themselves of shaking the foundations of our fundamental principles and seriously contravening
public policy (since they do not intrinsically contain any mention of the nature of the birth).


Alternatively, the refusal to register the birth details permanently and substantially disrupts the
family’s life, which is legally split into two in France – the French couple on one side and the
foreign children on the other – and the question then arises whether our international public
policy – even based upon proximity – can frustrate the right to family life within the meaning of
Article 8 [of the Convention] or whether, on the contrary, public policy of that kind, whose
effects have to be analysed in practical terms as do those of the foreign rights or decisions that
it seeks to exclude, should not be overridden by the obligation to comply with a provision of the
Convention.


If the second alternative is retained on the grounds that international conventions must take
precedence over public policy based on a standard provided for in a legislative provision, this
will not necessarily result in the automatic collapse of the barriers erected by the domestic
public-policy provision in such circumstances. As long as the European Court has not given a clear
ruling on the question of the lawfulness of surrogacy and allows the States to legislate as they
deem fit in this area, it can be considered contrary to public policy to validate, on grounds of
respect for family life, situations created illegally within the countries which prohibit them.


However, where it is merely a question of giving effect on the national territory to situations
lawfully established abroad – be this at the cost of deliberately disregarding the strictures of a
mandatory law – there is nothing to preclude international public policy – even based upon
proximity – from being overridden in order to allow families to lead a life in conformity with the
legal conditions in which they were created and the de facto conditions in which they now live.
Furthermore, the best interests of the child, envisaged not only under the New York Convention but
also under the case-law of the Court of Human Rights which has established this criterion as a
component of respect for family life, also militate in favour of this interpretation. At least this
is the lesson that I think we can draw from the judgment in Wagner ...”.


27.  However, on 6 April 2011 the Court of Cassation (First Civil Division) gave judgment
dismissing the appeal on the following grounds:


“ ... the refusal to register the particulars of a birth certificate drawn up in execution of a
foreign court decision, based on the incompatibility of that decision with French international
public policy, is justified where that decision contains provisions which conflict with essential
principles of French law. According to the current position under domestic law, it is contrary to
the principle of inalienability of civil status – a fundamental principle of French law – to give
effect, in terms of the legal parent-child relationship, to a surrogacy agreement, which, while it
may be lawful in another country, is null and void on public-policy grounds under Articles 16-7 and
16-9 of the Civil Code.


Accordingly, the Court of Appeal correctly held that, in giving effect to an agreement of this
nature, the “American” judgment of 14 July 2000 conflicted with the French concept of international
public policy, with the result that registration of the details of the birth certificates in
question, which had been drawn up in application of that judgment, should be annulled. This does
not deprive the children of the legal parent-child relationship recognised under Californian law
and does not prevent them from living with Mr and Mrs Mennesson in France; nor does it infringe the
children’s right to respect for their private and family life within the meaning of Article 8 of
the Convention ..., or the principle that their best interests are paramount as laid down in
Article 3 § 1 of the International Convention on the Rights of the Child ...”.

4.  Request for certificate of nationality

28.  On 16 April 2013 the first applicant lodged an application with the Paris District Court for a
certificate of French nationality for the third and fourth applicants. The senior registrar sent
him acknowledgement-of-receipt forms dated 31 October 2013 and 13 March 2014, indicating that the
request “was still being processed in [his] department pending a reply to the request for
authentication sent to the consulate of Los Angeles, California”.

...


THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

43.  The applicants complained that, to the detriment of the children’s best interests, they were
unable to obtain recognition in France of the legal parent-child relationship lawfully established
abroad between the first two applicants and the third and fourth applicants born abroad as the
result of a surrogacy agreement. They complained of a violation of the right to respect for their
private and family life guaranteed by Article 8 of the Convention as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his
correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the protection of the rights and
freedoms of others.”

...

B.  The merits

1.  Whether there has been an interference

48.  It is not in dispute between the parties that the refusal of the French authorities to legally
recognise the family tie between the applicants amounts to an “interference” in their right to
respect for their family life and accordingly raises an issue with regard to the negative
obligations of the respondent State under Article 8 rather than their positive obligations.

49.  The Court agrees, reiterating that this was its approach in, among other cases, Wagner and
J.M.W.L. (cited above, § 123) and Negrepontis-Giannisis v. Greece (no. 56759/08, § 58, 3 May 2011),
which concerned the refusal of the Luxembourg and Greek courts respectively to legally recognise an
adoption that had been established in foreign judgments. It specifies that, as in those cases,
there has been an interference in the present case in the exercise of the right guaranteed by
Article 8 not only regarding “family life” but also “private life”.

50. Such interference will be in breach of Article 8 of the Convention unless it can be justified
under paragraph 2 of that Article as being “in accordance with the law”, pursuing one or more of
the legitimate aims listed therein, and being “necessary in a democratic society” in order to
achieve the aim or aims concerned. The notion of “necessity” implies that the interference
corresponds to a pressing social need and, in particular that it is proportionate to the legitimate
aim pursued (see, for example, Wagner and J.M.W.L., § 124, and Negrepontis-Giannisis, § 61, both
cited above).

2.  Justification for the interference

a)    “In accordance with the law”

i.     The applicants

51.  The applicants alleged that there was an insufficient legal basis for the interference in
question. In their submission, they had been justified, on the basis of the position under domestic
law at the material time, in believing that their application for registration of the details of
the birth certificates legally drawn up in California would not be refused on grounds of an
infringement of public policy and would succeed without any difficulty. They referred to the
principle of the attenuated effect of public policy according to which “the reaction to a provision
that contravened public policy vari[ed] according to whether the case concerned the acquisition of
a right in France or giving effect in France to a right validly acquired, without fraud, abroad”
(Rivière judgment; Cass. Civ., First Division, 17 April 1953).

52.  They pointed out, firstly, that Article 16-7 of the Civil Code was confined to enshrining the
principle that any reproductive or gestational surrogacy agreement was null and void and did not
provide that nullity extended to the legal parent-child relationship in respect of children thus
conceived, particularly where that relationship was legally established through the effect of a
foreign judgment. Furthermore, in their view, no provision of French law prohibited the
establishment of a legal parent-child relationship between a child thus conceived and the woman and
man to whom the child was relinquished, and Article 47 of the Civil Code, as worded at the relevant
time, provided that civil-status documents drawn up in a foreign country were deemed to be valid in
so far as they had been drawn up in accordance with the procedures used in that country. They
submitted in that connection that the fact that the legislature had amended that provision in 2003
to make express provision for such certificates not to be deemed valid where the facts declared
therein did not match the reality showed that compliance with that condition had not previously
been required. They also stated that other couples who had entered into surrogacy agreements abroad
had succeeded in having their children’s birth details registered.

53.  Secondly, at the material time the case-law did not preclude recognition of legal parent-child
relationships on grounds of international public policy. The Court of Cassation had only made a
contrary ruling in cases where the surrogate mother had also been the biological mother of the
child or where the surrogacy arrangement had been performed in France (judgments of 31 May 1991 and
29 June 1994), and the public prosecutor’s office had decided not to appeal on points of law
against a judgment of the Paris Court of Appeal of 15 June 1990 validating the adoption of a child
conceived in the United States by a reproductive or gestational surrogacy arrangement, whereas at
the same time it had appealed against a judgment validating the adoption of a child thus conceived
in France. They considered irrelevant the Government’s submission that the case-law on Article 47
of the Civil Code deriving from the Court of Cassation’s judgment of 12 November 1986 meant that
civil-status documents drawn up in a third country did not have to be given effect in France where
the details recorded therein did not match the reality. They pointed out in this connection that
the certificates drawn up in the United States in their case did not purport to establish a
biological link between the second applicant and the third and fourth applicants.

54.  Thirdly, while other couples in their situation had easily obtained passports for their
children from the French consulate in Los Angeles, the applicants had been faced with an abrupt
change of practice in that respect, designed to detect cases of surrogate mothers, which was
comparable to the sudden change in practice that had been the subject of a finding of a violation
by the Court in Wagner, cited above (§ 130).

ii.  The Government

55.  The Government submitted that the interference had been “in accordance with the law”. They
observed in that connection that Article 16-7 of the Civil Code, which was a public-policy
provision, provided that any reproductive or gestational surrogacy agreement was null and void, and
that the Court of Cassation had observed in its judgments of 31 May 1991 and 29 June 1994 that the
principle of inalienability of the human body and civil status, which were also a matter of public
policy, precluded the attribution of the status of father or mother by contract and precluded
giving effect to a parent-child relationship provided for in surrogacy agreements. In their
submission, the fact that those judgments concerned the validity of adoption orders made following
a surrogacy arrangement carried out on French territory did not affect their relevance in the
present case. What was important was that they clearly established that agreements of this kind
contravened these public-policy principles. In other words, according to the Government, the
applicants could not have been unaware of the public-policy nature of the prohibition on surrogacy
arrangements under French law when they entered into the agreement, or of the difficulties likely
to arise subsequently.

56.  They added that in accordance with the case-law on Article 47 of the Civil Code deriving from
the judgment of the Court of Cassation of 12 November 1986 the authorities were justified in
refusing to give effect in France to civil-status documents drawn up in a third State where the
details recorded therein did not match the reality. They specified further that, other than in
isolated cases, there had been no practice in France, at the date of birth of the third and fourth
applicants, consisting in registering the birth particulars of children born as the result of a
surrogacy agreement performed abroad. That distinguished the facts of the present case from those
of Wagner, cited above, in which the applicants had been deprived of the benefit of this type of
practice with regard to adoption.

iii.  The Court

57.  According to the Court’s case-law, the expression “in accordance with the law” in Article 8 §
2 requires that the measure or measures in question should have some basis in domestic law, but
also refers to the quality of the law in question, requiring that it should be accessible to the
person concerned and foreseeable as to its effects. In order for the law to meet the criterion of
foreseeability, it must set forth with sufficient precision the conditions in which a measure may
be applied, to enable the persons concerned – if need be, with appropriate advice – to regulate
their conduct accordingly (see, for example, Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR
2000‑V, and Sabanchiyeva and Others v. Russia, no. 38450/05, § 124, ECHR 2013 (extracts)).

58.  The Court considers that these conditions are met in the present case. It notes first of all
that the applicants have not adduced any evidence in support of their assertion that a more liberal
practice used to exist in France regarding the recognition of a legal parent-child relationship
between children born abroad as the result of a surrogacy agreement and the intended parents. It
observes next that at the material time Articles 16-7 and 16-9 of the Civil Code expressly provided
that surrogacy agreements were null and void and specified that this was on public policy grounds.
Admittedly, the Court of Cassation had not given a general ruling on the question of recognition
under French law of the legal parent-child relationship between intended parents and children born
abroad as the result of a surrogacy agreement. It had, however, previously specified – in a case in
which the surrogate mother was the biological mother – that such an agreement contravened the
principles of inalienability of the human body and civil status. It had concluded in a similar case
that this precluded the establishment of a legal parent-child relationship between the child thus
conceived and the intended mother, and precluded, among other things, registration in the register
of births, marriages and deaths of the details recorded in a birth certificate drawn up abroad ...
. It was on the basis of those provisions of the Civil Code and in accordance with that explicit
case-law that the Court of Cassation concluded in the present case that the judgment of the Supreme
Court of California of 14 July 2000 was contrary to the French concept of international public
policy in that it gave effect to a surrogacy agreement and that the entries in the French register
of births, marriages and deaths of the particulars of the birth certificates drawn up in
application of that judgment should be annulled. In the Court’s view, the applicants could not
therefore have been unaware that there was at least a substantial risk that the French courts would
rule accordingly in their case, even if no provision of domestic law expressly precluded
recognition of a legal parent-child relationship between the first and second and the third and
fourth applicants, and notwithstanding the principle of the attenuated effect of public policy
(which, moreover, the Conseil d’État considers inapplicable to this type of situation ...). The
Court therefore finds that the interference was “in accordance with the law” within the meaning of
Article 8 of the Convention.

b)  Legitimate aims

59.  The applicants observed that the public prosecutor’s office had, of its own initiative,
requested registration of the US judgment delivered in their case and subsequently, several months
after obtaining registration, applied to the domestic courts to have it annulled. They argued that,
in the light of those contradictory actions, the French authorities could not be deemed to have
pursued a legitimate aim.

60.  The Government replied that the reason for the refusal to record the particulars of the US
birth certificates in the French register of births, marriages and deaths was that this would have
given effect to a surrogacy agreement, which was formally forbidden under a domestic public-policy
provision and constituted a punishable offence if performed in France. French law accordingly
reflected ethical and moral principles according to which the human body could not become a
commercial instrument and the child be reduced to the object of a contract. In their submission,
the “legitimate aims” of the interference were the prevention of disorder or crime, the protection
of health and the protection of the rights and freedoms of others. They added that the reason why
the public prosecutor’s office had requested that the particulars of the birth certificates of the
third and fourth applicants be recorded was precisely to subsequently request that these entries be
annulled. In doing so it had complied with Article 511 of the general circular on civil status of
11 May 1999, which prescribed automatic registration where public policy was concerned,
particularly where it was necessary to annul a civil-status document concerning a French national
that had been drawn up abroad in accordance with local procedures.

61.  The Court is not convinced by the applicants’ submission. The mere fact that the public
prosecutor’s office itself requested registration of the judgment of the Supreme Court of
California of 14 July 2000, in order to then request that the entry be annulled, cannot lead the
Court to conclude that the aim pursued by the interference in question did not appear among those
listed in the second paragraph of Article 8. Nor, however, is it convinced by the Government’s
assertion that the aim was to “prevent disorder or crime”. The Court observes that the Government
have not established that where French nationals have recourse to a surrogacy arrangement in a
country in which such an agreement is legal this amounts to an offence under French law. It notes
in this connection that although an investigation was commenced in the present case for “acting as
an intermediary in a surrogacy arrangement” and for “false representation infringing the civil
status of children”, the investigating judge held that there was no case to answer on the ground
that, as the acts had been committed on US territory, where they were not classified as a criminal
offence, they did not constitute a punishable offence in France (see paragraphs 15-16 above).

62.  The Court understands, however, that the reason why France refuses to recognise a legal
parent-child relationship between children born abroad as the result of a surrogacy agreement and
the intended parents is that it seeks to deter its nationals from having recourse to methods of
assisted reproduction outside the national territory that are prohibited on its own territory and
aims, in accordance with its perception of the issue, to protect children and – as can be seen from
the study by the Conseil d’État of 9 April 2009 ... – surrogate mothers. Accordingly, the Court
accepts that the Government may consider that the interference pursued two of the legitimate aims
listed in the second paragraph of Article 8 of the Convention: the “protection of health” and “the
protection of the rights and freedoms of others”.

c)  “Necessary in a democratic society”

i.  The applicants

63.  The applicants conceded that as there was no common European approach, the States parties in
principle had a wide margin of appreciation regarding the content of legal provisions concerning
surrogacy. They submitted that in the present case, however, the scope of that margin of
appreciation was relative. In their submission, the question was not whether the prohibition of
surrogacy agreements by a member State was compatible with the Convention. What was in issue here
was a decision which, in their country of residence, deprived children born as the result of a
surrogacy agreement lawfully performed abroad of civil-status documents indicating their legal
relationship with their parents, including their biological father. They also considered that there
was, at the very least, a favourable trend in Europe towards taking account of situations such as
theirs. Referring to Wagner and J.M.W.L., cited above, they pointed out that the need to take
account of the child’s best interests had the effect of restricting the States’ margin of
appreciation.

64.  Referring to that judgment (§ 135), the applicants next submitted that the French courts had
not carried out the requisite concrete and thorough examination of their family situation and the
competing interests. The Court of Appeal had simply disregarded, without stating reasons, the
ground of appeal based on an alleged violation of Article 8 of the Convention and the Court of
Cassation had upheld that judgment, merely stating that the measure in question did not prevent the
applicants from living together.

65.  Furthermore, according to the applicants, the rigid position of the Court of Cassation, which
set out to maintain a blanket “deterrent effect” of the prohibition of surrogacy, amounted to
precluding any pragmatic arrangement that would recognise – in the child’s best interests – the
effects of a situation that had been lawfully created abroad. In their view, this was contrary to
the Court’s case-law on Article 8, which had established a practical approach to the reality of
family life (the applicants referred, in particular, to the judgment of Wagner, cited above, §
133).

66.  In the applicants’ submission, the justification by the domestic courts was irrelevant since
the principle of inalienability of a person’s civil status was the subject of numerous practical
arrangements. Transsexuals, for example, could obtain a change of the sex stated on their birth
certificate and the legal recognition of children lawfully born abroad as the result of a surrogacy
agreement was the subject of debate among legal commentators, in parliament and in society. It was
all the more irrelevant since in principle French law was currently favourable to “intended”
parents. Accordingly, in the case of implantation of embryos in the womb of a third party (legal in
France; the applicants referred to Articles L. 2141-4 et seq. of the Public Health Code), a woman
who carried the embryo of another couple and gave birth to a child who was not biologically hers,
could – like her partner – establish a legal parent-child relationship with that child that
excluded the biological parents. Similarly, in cases of donor insemination (also legal in France),
no legal parent-child relationship could be established with the sperm donor, whereas a legal
parent-child relationship with the mother’s partner could be established (the applicants referred
to Articles 311-19 and 311-20 of the Civil Code).

67.  The applicants observed that an additional factor to be taken into account was that the
interference did not allow the pursued aim to be achieved, since, as pointed out by the Court of
Cassation, it did not deprive the children of the legal parent-child relationship with the mother
and father recognised under Californian law and did not prevent the applicants from living together
in France. Furthermore, their effective and affective family life was “legally clandestine”. This
was particularly shocking in the case of the first applicant, who was deprived of recognition of
the legal parent-child relationship with the third and fourth applicants by the refusal to record
the particulars of the children’s birth certificates in the French register of births, marriages
and deaths even though he was their biological father and there was nothing to prevent that
relationship from being officially recorded. What was more, the applicants had no other possibility
of having the family ties legally established, since the case-law of the Court of Cassation
precluded not only registration of the birth details but also adoption or recognition of their de
facto enjoyment of status (possession d’état). In that respect their case was clearly
distinguishable from the situation examined by the Court in Shavdarov v. Bulgaria (no. 3465/03, 21
December 2010).

68.  The applicants also observed that the measure in question had “grossly disproportionate
consequences” for the situation of the third and fourth applicants: without recognition of a legal
parent-child relationship with the first two applicants, they did not have French nationality, did
not have a French passport, had no valid residence permit (even if, as minors, they could not be
deported), and might find it impossible to obtain French nationality and thus be ineligible to vote
and ineligible for unconditional leave to remain in France; and they could be prevented from
inheriting under the first two applicants’ estate. Furthermore, in the event of the first
applicant’s death or should the first two applicants separate, the second applicant would be
deprived of any rights in respect of the children, to their and her own detriment. For
administrative steps for which French nationality or an official legal parent-child relationship
were required (registration of the children for social-security purposes, enrolment at the school
canteen or outdoor centre, or applications for financial assistance from the Family Allowances
Office), they had to produce the US birth certificates together with an officially sworn
translation in order to prove that the children were theirs, and the success of their application
depended on the good will of the person dealing with it. The applicants pointed out in this
connection that the advocate-general had recommended, before the Court of Cassation, recognising
the legal parent-child relationship between the applicants, particularly on grounds of the
children’s best interests, and that the Paris Court of Appeal itself had observed that the
situation would create practical difficulties for the Mennesson family. They also referred to the
report of the Conseil d’État of 2009 on the review of bioethical laws, which indicated that “in
practice families’ lives [were] more complicated without registration, because of the formalities
that had to be completed on various occasions in life”. They added that, in Wagner, cited above (§
132), the Court had acknowledged that in this type of situation there had been a failure to take
account of the “social reality” and that “the child [had] not [been] afforded legal protection
making it possible for her to be fully integrated into the [in that case] adoptive family”. They
also questioned the purpose of refusing to register the particulars of birth certificates drawn up
abroad if, as the Government maintained, such certificates took full effect in France and
registration was a mere formality.

69.  The applicants also submitted that the Court’s ruling of no violation of Article 8 in A., B.
and C. v. Ireland [GC] (no. 25579/05, ECHR 2010) and S.H. and Others v. Austria [GC] (no. 57813/00,
ECHR 2011), which concerned access to abortion and medically assisted reproduction respectively,
was based on the finding that, although domestic law prohibited these practices, it did not prevent
individuals from going abroad to take advantage of them, and, in S.H., that the legal father-child
and mother-child relationship was thus “[governed by] clear rules of the Civil Code [that
respected] the parents’ wishes”.

70.  In their replies to the additional questions put by the President of the Section (see
paragraph 5 above), the applicants indicated that under Article 311-14 of the Civil Code, the legal
parent-child relationship was governed by the law of the mother’s country on the date of the
child’s birth (and where the mother was not known, by the law of the child’s country), that is,
according to the case-law of the Court of Cassation (Civ., First Division, 11 June 1996), the law
of the country indicated in the birth certificate. It was clear from the Supreme Court of
California’s decision of 14 July 2000 that the official parents of the third and fourth applicants
were the first two applicants. The French authorities and courts had refused to make that finding,
however, with the result that as the mother was not recognised as having that status under French
law, the legal parent-child relationship could not be governed by the law of her country.
Accordingly, it was governed by the law of the country of the third and fourth applicants: US law.
As the legal parent-child relationship between them and the first two applicants could not be
established under French law and the Court of Cassation’s judgments of 13 September 2013 had
annulled the recognition of paternity by biological fathers of children born as the result of a
surrogacy agreement performed abroad ..., the third and fourth applicants could not acquire French
nationality under Article 18 of the Civil Code (“a child of whom at least one parent is French has
French nationality”) even though the first applicant was their biological father. The applicants
added that, notwithstanding the circular of 25 January 2013 ..., the third and fourth applicants
could not obtain a certificate of nationality. They submitted that as a result of the judgment
delivered in their case by the Court of Cassation and its decisions of 13 September 2013 describing
as “fraudulent” the process by which the birth certificate of a child born abroad of a surrogacy
agreement was drawn up, the US birth certificates of the children were invalid for the purposes of
Article 47 of the Civil Code, whereupon that provision was inoperative. They added that the thrust
of the circular was not to preclude the issuing of a certificate of nationality on the basis of a
mere suspicion that recourse had been had to a surrogacy arrangement and that it was therefore
inoperative in respect of situations such as theirs in which the courts had explicitly found that
there had been a surrogacy arrangement. In support of that argument, they stated that they had not
received a reply to the request for a certificate of French nationality for the third and fourth
applicants lodged on 16 April 2013 by the first applicant with the registry of the Charenton Le
Pont District Court. They produced acknowledgment-of-receipt forms signed on 31 October 2013 and 13
March 2014 by the registrar indicating that the request “[was] still being processed in [his]
department pending a reply to the request for authentication sent to the consulate of Los Angeles,
California”. They added that, on account in particular of the Court of Cassation’s decisions of 13
September 2013, the first applicant could not recognise the third and fourth applicants even though
he was their biological father.

ii.  The Government

71.  The Government submitted that the failure to register the particulars of foreign civil-status
documents such as the birth certificates of the third and fourth applicants did not preclude them
from taking full effect in France. They argued first that, accordingly, certificates of French
nationality were issued on the basis of such certificates where it was established that one of the
parents was French (the Government produced a copy of the circular of the Minister of Justice of 25
January 2013, and observed that the applicants had not taken any steps towards obtaining French
nationality for the third and fourth applicants) and that minors could not be removed from France;
secondly, the first and second applicants enjoyed full parental responsibility in respect of the
third and fourth applicants, on the basis of the US civil-status documents; thirdly, were the first
and second applicants to divorce, the family-affairs judge would determine their place of residence
and the contact rights of the parents as named in the foreign civil-status document; fourthly, as
evidence of one’s status as heir could be provided by any means, the third and fourth applicants
would be in a position to inherit under the first and second applicants’ estate on the basis of
their US civil-status documents, as provided for under ordinary law. The Government also observed
that the applicants had overcome the problems they referred to as they did not claim to have been
unable to register the third and fourth applicants for social-security purposes or enrol them at
school or not to have received social benefits from the Family Allowances Office, and that,
generally, they had not shown that they were faced with “numerous and daily difficulties” on
account of the refusal to register the particulars of the children’s birth certificates.
Accordingly, the Government questioned the actual extent of the interference with the applicants’
family life, that interference being limited to their inability to obtain French civil-status
documents.

72.  The Government stressed that in the interests of proscribing any possibility of trafficking in
human bodies, guaranteeing respect for the principle that the human body and a person’s civil
status were inalienable, and protecting the child’s best interests, the legislature – thus
expressing the will of French people – had decided not to permit surrogacy arrangements. The
domestic courts had duly drawn the consequences of that by refusing to register the particulars of
the civil-status documents of persons born as the result of a surrogacy agreement performed abroad;
to permit this would have been tantamount to tacitly accepting that domestic law could be
circumvented knowingly and with impunity and would have jeopardised the consistent application of
the provision outlawing surrogacy.

They added, on the specific point about failure to register the legal father -child relationship,
that this was due to the fact that the first and second applicants had entered into the surrogacy
arrangement as a couple and that the respective situations of the members of the couple were
indissociable. They also considered that, having regard to the various different ways in which the
legal parent-child relationship could be established under French law, giving priority to a purely
biological criterion “appear[ed] highly questionable”. Lastly, they submitted that “in terms of the
child’s interests, it seem[ed] preferable to place both parents on the same level of legal
recognition of the ties existing between themselves and their children”.

73.  The Government added that as surrogacy was a moral and ethical issue and there was no
consensus on the question among the States parties, the latter should be afforded a wide margin of
appreciation in that area and in the manner in which they apprehended the effects of the relevant
legal parent-child relationship established abroad. In their view, having regard to that wide
margin of appreciation and the fact that the applicants were leading a normal family life on the
basis of the US civil status of their children and that the latters’ best interests were protected,
the interference in the exercise of the rights guaranteed them under Article 8 of the Convention
was “entirely proportionate” to the aims pursued, with the result that there had been no violation
of that provision.

74.  In their replies to the additional questions of the President of the Section (see paragraph 5
above), the Government stated that the law applicable to the establishment of the legal
parent-child relationship between the first two and the third and fourth applicants was, in
accordance with Article 311-14 of the Civil Code, the law of their mother’s country, namely,
according to the case-law of the Court of Cassation (Civ., First Division, 11 June 1996, Bull. civ.
no. 244), that of their birth mother. It was therefore the law of the country of the surrogate
mother, namely, US law, in this case; under US law, the first two applicants were the parents of
the third and fourth applicants, the second applicant being their “legal mother”. The Government
added that in so far as they satisfied the requirements of Article 47 of the Civil Code, and
irrespective of whether or not the particulars were registered, foreign birth certificates took
effect in France, particularly regarding proof of the legal parent-child relationship stated in
them. They specified that Article 47 was applicable to the present case despite the fact that the
entries of the particulars of the third and fourth applicants’ US birth certificates had been
annulled in accordance with the judgment of the Court of Cassation of 6 April 2011 and that,
according to the case-law of that court, surrogacy agreements were null and void as a matter of
public policy and did not take effect under French law with regard to the legal parent-child
relationship. Accordingly, Article 18 of the Civil Code – pursuant to which a child of whom at
least one parent was French had French nationality – applied where proof of a lawfully established
parent-child relationship was provided by a foreign civil-status document of unquestionable
probative force. Lastly, the Government stated that the first applicant could not recognise the
third and fourth applicants in France, as the Court of Cassation had held on 13 September 2013 that
recognition of paternity by the intended father of a child born of a surrogacy agreement had to be
annulled where he had circumvented the law by having recourse to such an arrangement.

iii.  The Court

α. General considerations

75.  The Court notes the Government’s submission that, in the area in question, the Contracting
States enjoyed a substantial margin of appreciation in deciding what was “necessary in a democratic
society”. It also notes that the applicants conceded this but considered that the extent of that
margin was relative in the present case.

76.  The Court shares the applicants’ analysis.

77.  It reiterates that the scope of the States’ margin of appreciation will vary according to the
circumstances, the subject matter and the context; in this respect one of the relevant factors may
be the existence or non-existence of common ground between the laws of the Contracting States (see,
for example, Wagner and J.M.W.L., and Negrepontis-Giannisis, cited above, § 128 and § 69
respectively). Accordingly, on the one hand, where there is no consensus within the member States
of the Council of Europe, either as to the relative importance of the interest at stake or as to
the best means of protecting it, particularly where the case raises sensitive moral or ethical
issues, the margin will be wide. On the other hand, where a particularly important facet of an
individual’s existence or identity is at stake, the margin allowed to the State will normally be
restricted (see, in particular, S.H., cited above, § 94).

78.  The Court observes in the present case that there is no consensus in Europe on the lawfulness
of surrogacy arrangements or the legal recognition of the relationship between intended parents and
children thus conceived abroad. A comparative-law survey conducted by the Court shows that
surrogacy is expressly prohibited in fourteen of the thirty-five member States of the Council of
Europe – other than France – studied. In ten of these it is either prohibited under general
provisions or not tolerated, or the question of its lawfulness is uncertain. However, it is
expressly authorised in seven member States and appears to be tolerated in four others. In thirteen
of these thirty-five States it is possible to obtain legal recognition of the parent-child
relationship between the intended parents and the children conceived through a surrogacy agreement
legally performed abroad. This also appears to be possible in eleven other States (including one in
which the possibility may only be available in respect of the father-child relationship where the
intended father is the biological father), but excluded in the eleven remaining States (except
perhaps the possibility in one of them of obtaining recognition of the father-child relationship
where the intended father is the biological father) ... .

79.  This lack of consensus reflects the fact that recourse to a surrogacy arrangement raises
sensitive ethical questions. It also confirms that the States must in principle be afforded a wide
margin of appreciation, regarding the decision not only whether or not to authorise this method of
assisted reproduction but also whether or not to recognise a legal parent-child relationship
between children legally conceived as the result of a surrogacy arrangement abroad and the intended
parents.

80.  However, regard should also be had to the fact that an essential aspect of the identity of
individuals is at stake where the legal parent-child relationship is concerned. The margin of
appreciation afforded to the respondent State in the present case therefore needs to be reduced.

81.  Moreover, the solutions reached by the legislature – even within the limits of this margin –
are not beyond the scrutiny of the Court. It falls to the Court to examine carefully the arguments
taken into consideration and leading to the solution reached and to determine whether a fair
balance has been struck between the competing interests of the State and those directly affected by
that solution (see, mutatis mutandis, S.H. and Others, cited above, § 97). In doing so, it must
have regard to the essential principle according to which whenever the situation of a child is in
issue, the best interests of that child are paramount (see, among many other authorities, Wagner
and J.M.W.L., cited above, §§ 133-34, and E.B. v. France [GC], no. 43546/02, §§ 76 and 95, 22
January 2008).

82.  In the present case the Court of Cassation held that French international public policy
precluded registration in the register of births, marriages and deaths of the particulars of a
birth certificate drawn up in execution of a foreign decision containing provisions which
conflicted with essential principles of French law. It then observed that under French law
surrogacy agreements were null and void on grounds of public policy, and that it was contrary to
the “essential principle of French law” of inalienability of civil status to give effect to such
agreements as regards the legal parent-child relationship. It held that in so far as it gave effect
to a surrogacy agreement, the judgment delivered in the applicants’ case by the Supreme Court of
California was contrary to the French conception of international public policy, and that as the US
birth certificates of the third and fourth applicants had been drawn up in application of that
judgment, the details of those certificates could not be entered in the French register of births,
marriages and deaths (see paragraph 27 above).

83.  The applicants’ inability to have the parent-child relationship between the first two
applicants and the third and fourth applicants recognised under French law is therefore, according
to the Court of Cassation, a consequence of the French legislature’s decision on ethical grounds to
prohibit surrogacy. The Government pointed out in that connection that the domestic courts had duly
drawn the consequences of that decision by refusing to authorise entry in the register of births,
marriages and deaths of the details of foreign civil-status documents of children born as the
result of a surrogacy agreement performed outside France. To do otherwise would, in their
submission, have been tantamount to tacitly accepting that domestic law had been circumvented and
would have jeopardised the consistent application of the provisions outlawing surrogacy.

84.  The Court observes that that approach manifests itself in an objection on grounds of
international public policy, which is specific to private international law. It does not seek to
call this into question as such. It must, however, verify whether in applying that mechanism to the
present case the domestic courts duly took account of the need to strike a fair balance between the
interest of the community in ensuring that its members conform to the choice made democratically
within that community and the interest of the applicants – the children’s best interests being
paramount – in fully enjoying their rights to respect for their private and family life.

85.  It notes in that connection that the Court of Cassation held that the inability to record the
particulars of the birth certificates of the third and fourth applicants in the French register of
births, marriages and deaths did not infringe their right to respect for their private and family
life or their best interests as children in so far as it did not deprive them of the legal
parent-child relationship recognised under Californian law and did not prevent them from living in
France with the first and second applicants (see paragraph 27 above).

86.  The Court considers that a distinction has to be drawn in the instant case between the
applicants’ right to respect for their family life on the one hand and the right of the third and
fourth applicants to respect for their private life on the other hand.

β. The applicants’ right to respect for their family life

87.  With regard to the first point, the Court considers that the lack of recognition under French
law of the legal parent-child relationship between the first and second applicants and the third
and fourth applicants necessarily affects their family life. It notes in this regard that, as
pointed out by the applicants, the Paris Court of Appeal acknowledged in this case that the
situation thus created would cause “practical difficulties” (see paragraph 24 above). It also
observes that, in its report of 2009 on the review of bioethical laws, the Conseil d’État observed
that “in practice families’ lives [were] more complicated without registration, because of the
formalities that had to be completed on various occasions in life” (see paragraph 68 above).

88.  Accordingly, as they do not have French civil-status documents or a French family record book
the applicants are obliged to produce – non-registered – US civil documents accompanied by an
officially sworn translation each time access to a right or a service requires proof of the legal
parent-child relationship, and are sometimes met with suspicion, or at the very least
incomprehension, on the part of the person dealing with the request. They refer to difficulties
encountered when registering the third and fourth applicants with social security, enrolling them
at the school canteen or an outdoor centre and applying to the Family Allowances Office for
financial assistance.

89.  Moreover, a consequence – at least currently – of the fact that under French law the two
children do not have a legal parent-child relationship with the first or second applicant is that
they have not been granted French nationality. This complicates travel as a family and raises
concerns – be they unfounded, as the Government maintain – regarding the third and fourth
applicants’ right to remain in France once they attain their majority and accordingly the stability
of the family unit. The Government submit that having regard in particular to the circular of the
Minister of Justice, of 25 January 2013 ..., the third and fourth applicants could obtain a
certificate of French nationality on the basis of Article 18 of the Civil Code, which provides that
“a child of whom at least one parent is French has French nationality”, by producing their US birth
certificates.

90.  The Court notes, however, that it is still unclear whether this possibility does actually
exist.

Firstly, it notes that according to the very terms of the provision referred to, French nationality
is granted on the basis of the nationality of one or other parent. It observes that it is
specifically the legal determination of the parents that is at the heart of the application lodged
with the Court. Accordingly, the applicants’ observations and the Government’s replies suggest that
the rules of private international law render recourse to Article 18 of the Civil Code in order to
establish the French nationality of the third and fourth applicants particularly complex, not to
mention uncertain, in the present case.

Secondly, the Court notes that the Government rely on Article 47 of the Civil Code. Under that
provision, civil-status certificates drawn up abroad and worded in accordance with the customary
procedures of the country concerned are deemed valid “save where other certificates or documents
held, external data or particulars in the certificate itself establish that the document in
question is illegal, or forged, or that the facts stated therein do no match the reality”. The
question therefore arises whether that exception applies in a situation such as the present case,
where it has been observed that the children concerned were born as the result of a surrogacy
agreement performed abroad, which the Court of Cassation analyses as a circumvention of the law.
Although they were invited by the President to answer that question and specify whether there was a
risk that a certificate of nationality thus drawn up would subsequently be contested and annulled
or withdrawn, the Government have not provided any indications. Moreover, the request lodged for
that purpose on 16 April 2013 with the registry of the Paris District Court by the first applicant
was still pending eleven months later. The senior registrar indicated on 31 October 2013 and on 13
March 2014 that it was “still being processed in [his] department pending a reply to the request
for authentication sent to the consulate of Los Angeles, California” (see paragraph 28 above).

91.  To that must be added the entirely understandable concerns regarding the protection of family
life between the first and second and the third and fourth applicants in the event of the first
applicant’s death or the couple’s separation.

92.  However, whatever the degree of the potential risks for the applicants’ family life, the Court
considers that it must determine the issue having regard to the practical obstacles which the
family has had to overcome on account of the lack of recognition in French law of the legal
parent-child relationship between the first two applicants and the third and fourth applicants
(see, mutatis mutandis, X, Y and Z, cited above, § 48). It notes that the applicants do not claim
that it has been impossible to overcome the difficulties they referred to and have not shown that
the inability to obtain recognition of the legal parent-child relationship under French law has
prevented them from enjoying in France their right to respect for their family life. In that
connection it observes that they were all four able to settle in France shortly after the birth of
the third and fourth applicants, are in a position to live there together in conditions broadly
comparable to those of other families and that there is nothing to suggest that they are at risk of
being separated by the authorities on account of their situation under French law (see, mutatis
mutandis, Shavdarov v. Bulgaria, no. 3465/03, §§ 49-50, 21 December 2010).

93.  The Court also observes that in dismissing the grounds of appeal submitted by the applicants
under the Convention, the Court of Cassation observed that annulling registration of the details of
the third and fourth applicants’ birth certificates in the French register of births, marriages and
deaths did not prevent them from living with the first and second applicants in France (see
paragraph 27 above). Referring to the importance it had attached in Wagner and J.M.W.L. (cited
above, § 135) to carrying out an actual examination of the situation, the Court concludes that in
the present case the French courts did duly carry out such an examination, since they considered in
the above-mentioned terms, implicitly but necessarily, that the practical difficulties that the
applicants might encounter in their family life on account of not obtaining recognition under
French law of the legal parent-child relationship established between them abroad would not exceed
the limits required by compliance with Article 8 of the Convention.

94.  Accordingly, in the light of the practical consequences for their family life of the lack of
recognition under French law of the legal parent-child relationship between the first two
applicants and the third and fourth applicants and having regard to the margin of appreciation
afforded to the respondent State, the Court considers that the situation brought about by the Court
of Cassation’s conclusion in the present case strikes a fair balance between the interests of the
applicants and those of the State in so far as their right to respect for family life is concerned.

95.  It remains to be determined whether the same is true regarding the right of the third and
fourth applicants to respect for their private life.

γ.  Right of the third and fourth applicants to respect for their private life

96. As the Court has observed, respect for private life requires that everyone should be able to
establish details of their identity as individual human beings, which includes the legal
parent-child relationship ...; an essential aspect of the identity of individuals is at stake where
the legal parent-child relationship is concerned (see paragraph 80 above). As domestic law
currently stands, the third and fourth applicants are in a position of legal uncertainty. While it
is true that a legal parent-child relationship with the first and second applicants is acknowledged
by the French courts in so far as it has been established under Californian law, the refusal to
grant any effect to the US judgment and to record the details of the birth certificates accordingly
shows that the relationship is not recognised under the French legal system. In other words,
although aware that the children have been identified in another country as the children of the
first and second applicants, France nonetheless denies them that status under French law. The Court
considers that a contradiction of that nature undermines the children’s identity within French
society.

97.  Whilst Article 8 of the Convention does not guarantee a right to acquire a particular
nationality, the fact remains that nationality is an element of a person’s identity (see Genovese
v. Malta, no. 53124/09, § 33, 11 October 2011). As the Court has already pointed out, although
their biological father is French the third and fourth applicants face a worrying uncertainty as to
the possibility of obtaining recognition of French nationality under Article 18 of the Civil Code
... . That uncertainty is liable to have negative repercussions on the definition of their personal
identity.

98.  The Court also observes that the fact that the third and fourth applicants are not identified
under French law as the children of the first and second applicants has consequences for their
inheritance rights. It notes that the Government deny this, but observes that the Conseil d’État
has ruled that in the absence of recognition in France of a legal parent-child relationship
established abroad with regard to the intended mother, a child born abroad as the result of a
surrogacy agreement cannot inherit under the mother’s estate unless the latter has named the child
as a legatee, the death duties then being calculated in the same way as for a third party ..., that
is, less favourably. The same situation arises in the context of inheritance under the intended
father’s estate, whether or not he be the biological father as in this case. This is also a
component of their identity in relation to their parentage of which children born as the result of
a surrogacy agreement performed abroad are deprived.

99.  The Court can accept that France may wish to deter its nationals from going abroad to take
advantage of methods of assisted reproduction that are prohibited on its own territory (see
paragraph 62 above). Having regard to the foregoing, however, the effects of non-recognition in
French law of the legal parent-child relationship between children thus conceived and the intended
parents are not limited to the parents alone, who have chosen a particular method of assisted
reproduction prohibited by the French authorities. They also affect the children themselves, whose
right to respect for their private life – which implies that everyone must be able to establish the
substance of his or her identity, including the legal parent-child relationship – is substantially
affected. Accordingly, a serious question arises as to the compatibility of that situation with the
child’s best interests, respect for which must guide any decision in their regard.

100.  This analysis takes on a special dimension where, as in the present case, one of the intended
parents is also the child’s biological parent. Having regard to the importance of biological
parentage as a component of identity (see, for example, Jäggi, cited above, § 37), it cannot be
said to be in the interests of the child to deprive him or her of a legal relationship of this
nature where the biological reality of that relationship has been established and the child and
parent concerned demand full recognition thereof. Not only was the relationship between the third
and fourth applicants and their biological father not recognised when registration of the details
of the birth certificates was requested, but formal recognition by means of a declaration of
paternity or adoption or through the effect of de facto enjoyment of civil status would fall foul
of the prohibition established by the Court of Cassation in its case-law in that regard ... . The
Court considers, having regard to the consequences of this serious restriction on the identity and
right to respect for private life of the third and fourth applicants, that by thus preventing both
the recognition and establishment under domestic law of their legal relationship with their
biological father, the respondent State overstepped the permissible limits of its margin of
appreciation.

101.  Having regard also to the importance to be given to the child’s interests when weighing up
the competing interests at stake, the Court concludes that the right of the third and fourth
applicants to respect for their private life was infringed.

3.  General conclusion

102.  There has been no violation of Article 8 of the Convention with regard to the applicants’
right to respect for their family life. There has, however, been a violation of that provision with
regard to the right of the third and fourth applicants to respect for their private life.


...

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

...


2.  Holds that there has been no violation of Article 8 of the Convention with regard to the
applicants’ right to respect for their family life;


3.  Holds that there has been a violation of Article 8 of the Convention with regard to the third
and fourth applicants’ right to respect for their private life;

...

Done in French, and notified in writing on 26 June 2014, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.

Claudia Westerdiek                                                                   Mark Villiger
        Registrar
President