Case of Mennesson v. France

The applicants are husband and wife who opted for a surrogacy arrangement in California as the second applicant had infertility issues. The Supreme Court of California ruled that the first applicant would be the genetic father and the second applicant would be the legal mother of any child the surrogate mother gave birth to within the following four months. The first applicant went to the French Consulate in Los Angeles to have the birth certificates entered in the French Register of births, marriages and deaths and for the names to be entered on the passport as he wanted to return to France with the second applicant and his wife.

The French consulate refused to enter the names suspecting a surrogacy arrangement and sent the file for further investigation. The US Administration issued US passports to the twins with the first and second applicant mentioned as their parents. The twins (third and fourth applicant) traveled to France on that passport. Investigation on the surrogacy arrangements was dismissed, as the acts had been committed on US territory. The French Consulate had been directed by the public prosecutor’s office to enter the details of the twins in the Register. However, after 6 months, he instituted proceedings to have the entries annulled. He contended that the order of the Supreme Court of California was in contravention of the French public policy and therefore not executable in France. The Paris Court of Appeal annulled the entries after the Court of Cassation remitted the case to it. The applicants appealed stating the under Article 3 of the Child Rights Convention, the best interest principle had been violated and further surrogacy was lawfully contracted and it was not in contravention of international public policy. During the proceedings, the Advocate General stated that a right acquired abroad and a decision delivered by a foreign court should be allowed to take full legal effect and should not be prohibited. The Court of Cassation dismissed the appeal stating that the American judgment conflicted the French concept of public policy.

The applicants alleged that their rights under Article 8 (Right to Family an Private Life) had been infringed.

The Court held that there was no violation of Article 8 with respect to the first and second applicant but there was a violation of Article 8 of the third and fourth applicant. The Court stated that respect for private life within the meaning of Article 8 of the Convention also entails in it a right to establish identity. This right in turn includes the right to establish a legal parent-child relationship. The refusal by the authorities to record/annul the existing entry in the French Register of births, marriages and deaths shows that this identity or relationship is not recognised under the French Legal System. Further, nationality is a part of one’s identity, which was denied for the third and fourth applicants.

The Court stated that since there was no consensus on the status of surrogacy in the European Union and it was expressly prohibited in 14 member states. As it raises wide ethical issues, member states are granted wide margins of discretion if they want to allow surrogacy arrangements or not.

“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 statusunder French law. The Court considers that a contradiction of that nature undermines the children’s identity within French society.” (Para 96)

“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.” (Para 97)

“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, even if he is 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.” (Para 98)