ECtHR - Mennesson v. France

The cases concerned the refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and the couples who had had the treatment. Totally prohibiting the establishment of a relationship between a father and his biological children born following surrogacy arrangements abroad was found in breach of the Convention

Case status
Decided
Case number
65192/11
Date of decision
State
Court / UN Treaty Body
European Court of Human Rights (Fifth Section)
Language(s) the decision is available in
English
French
Applicant's country of birth
France
Applicant's country of residence
France
Relevant Legislative Provisions

Article(s) 8, 8-1, 8-2, 35 and 41

Facts

The applicants in the first case are husband and wife Dominique and Sylvie Mennesson, French nationals born in 1955 and 1965 respectively, and Valentina Mennesson and Fiorella Mennesson, twin American nationals born in 2000. They live in Maisons-Alfort (France).

The applicants have been unable to secure recognition under French law of the legal parent-child relationship established between them in the United States, as the French authorities maintain that the surrogacy agreements entered into by Mr and Mrs Mennesson are unlawful.

Relying on Article 8 (right to respect for private and family life) of the Convention, the applicants complained of the fact that, to the detriment of the children’s best interests, they were unable to obtain recognition in France of parent-child relationships that had been legally established abroad. The applicants in the Mennesson case further alleged, in particular, a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8, arguing that their inability to obtain recognition placed the children in a discriminatory legal situation compared with other children when it came to exercising their right to respect for their family life.

Decision & Reasoning

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 the 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, forged, or that the facts stated therein do not 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 has deemed 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 Charenton-le-Pont 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).

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.

Outcome

No violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights concerning the applicants’ right to respect for their family life;
Violation of Article 8 concerning the children’s right to respect for their private life.

Caselaw cited

Strasbourg Case-Law

  • A., B. and C. v. Ireland [GC], no 25579/05, ECHR 2010
  • Chavdarov v. Bulgaria, no 3465/03, 21 December 2010
  • E.B. v. France [GC], no 43546/02, §§ 76 and 95, 22 January 2008
  • Genovese v. Malta, no 53124/09, § 33, 11 October 2011
  • Jäggi v. Switzerland, no 58757/00, § 37, ECHR 2006 X
  • Mazurek v. France, no 34406/97, ECHR 2000 II
  • Mikulić v. Croatia, no 53176/99, §§ 34-35, ECHR 2002 I
  • Negrepontis-Giannisis v. Greece, no 56759/08, § 58, 3 May 2011
  • Pla and Puncernau v. Andorra, no 69498/01, ECHR 2004 VIII
  • Rotaru v. Romania [GC], no 28341/95, § 55, ECHR 2000 V
  • S.H. and Others v. Austria [GC], no 57813/00, ECHR 2011
  • Sabanchiyeva and Others v. Russia, no 38450/05, § 124, ECHR 2013 (extracts)
  • Wagner and J.M.W.L. v. Luxembourg, no 76240/01, 28 June 2007
  • X, Y and Z v. the United Kingdom, 22 April 1997, Reports of Judgments and Decisions 1997 II