Mennesson v. France

Case Name: Mennesson v France[1]

Court: European Court of Human Rights

 Date of judgment: 26 June 2014

Citation: Mennesson v France, Application no. 65192/11, Council of Europe: European Court of Human Rights, 26 June 2014

Introduction

This case is a human rights case brought before the European Court of Human Rights (ECtHR), concerning the recognition of the legal parent-child relationship established via a cross-border surrogacy arrangement.

A complaint was lodged in respect of a violation of Article 8 of the European Convention on Human Rights (ECHR)[2] by two French nationals, Mr Dominique Mennesson (the first applicant and the biologically related parent) and Ms Sylvie Mennesson (the second applicant and the non-genetically linked parent), and two nationals of the United States of America, the third and fourth applicants (the children born as a result of a gestational surrogacy arrangement).[3]  

Facts of the Case

The first and second applicants are husband and wife who are unable to have children as the second applicant is infertile. As a result, they underwent in vitro fertilisation in California using the gametes from the first applicant and a donor egg, with the resulting embryo implanted in the uterus of the surrogate mother. They had entered into a gestational surrogacy agreement, which is legal in California.[4]

Following a judgment of 14 July 2000, the Supreme Court of California ruled that the first applicant would be the genetic father on the birth certificate and the second applicant would be the legal mother according to California law.[5] This was then recorded in the birth certificates when the twins were born.

The applicant subsequently sought to secure recognition under French law of the legal parent-child relationship that was established in California. Still, French authorities refused to do so on the grounds that the surrogacy agreement entered into was unlawful under French law.

After exhausting all legal avenues in France, the applicants then resorted to complaining to the ECtHR as there was an interference with respect to their Article 8 right of the ECHR, in that the refusal of the recognition meant that the children were unable to acquire French nationality.

Legal Issues Primary Issue:

• Whether France’s refusal to recognise the applicants as legal parents of the children interfered with the first and second applicants’ rights under Article 8.
• Whether France’s refusal to recognise the legal parent-child relationship interfered with the Article 8 rights of the third and fourth applicants.

Arguments

Applicants’ Arguments:

The applicants argued that Article 16-7 of the Civil Code[6], namely that surrogacy agreement is a matter of public policy and is null and void, did not extend to the legal parent-child relationship that was legally established abroad through the effect of the foreign judgment. They added that there was no French provision prohibiting the establishment of a legal parent-child relationship between a child conceived and the woman and man to whom the child was relinquished.

The decision of refusal, in the applicants’ country of residence, deprived the children, born as a result of a surrogacy agreement that was lawfully performed abroad, of certain rights and privileges. The measure had ‘grossly disproportionate consequence(s)’[7] for the children. They would have no French nationality, no French passport, and no valid residence permit. Moreover, the second applicant, the legal mother according to the birth certificate, would be deprived of any rights with respect to the children if the first and second applicants were to separate.[8]

Government’s Arguments:

The government argued that the interference is in accordance with the law, as Article 16-7 of the Civil Code is a public policy provision that deems any reproductive or gestational surrogacy agreement null and void.

They further argued that the certificates of French nationality were obtainable where it was established that one of the parents was French, but the applicant did not take any necessary steps towards this, and there was no outright denial of eligibility (though the Court questioned whether nationality certificates were truly obtainable in practice). The first and second applicants had also enjoyed full parental responsibility of the third and fourth applicants as a result of the US civil status document.

The government opposed surrogacy, arguing that it could lead to the commercialisation of the human body and undermine the principle that a person’s civil status is inalienable. The minor court’s refusal to recognise cross-border surrogacy agreements should be held as allowing them would undermine its consistent enforcement.[9]

Moreover, the government argued that the applicants had not shown that they were faced with ‘numerous and daily difficulties’[10] on account of the refusal of non-recognition of the particulars of the birth certificate.

Decision

On the question (1) of whether the rights of the first and second applicants were breached, the Court held unanimously that there was no violation.

Regarding the question (2) of whether the rights of the third and fourth applicants were breached, the Court held unanimously that there was a violation.

The ECtHR reaffirmed that Article 8 of the ECHR does not guarantee the right to acquire a specific nationality. However, as nationality is a crucial aspect of an individual’s identity, the uncertainty of the children’s nationality may affect their identity.

Court’s Analysis:

The Court began by affirming that Contracting States enjoy a margin of appreciation in deciding what was necessary in a democratic society, but with that being said, it will be narrowed when an important aspect of a person’s existence or identity is at stake. The Court referred to S.H. and Others v Austria[11]. This principle also entailed the State’s right to determine whether or not to authorise the method of assisted reproduction and also whether or not to recognise legal parenthood. Nonetheless, it is for the Court to determine whether a fair balance has been struck between the decision of the State and those directly involved (the applicants).

The Court broke its analysis down into two separate points as Article 8 protects both private life, which encompasses identity and autonomy, and family life relating to relationships. The first regards the non-violation of the first and second applicants concerning their right to respect for their family life[12] and the second, the right of the third and fourth applicants to respect for their private life.[13]

The Court agreed that the lack of recognition of the parent-child relationship affected the first and second applicants’ family life in several aspects. Such as the obligation to produce US civil state documents, the lack of French nationality of the third and fourth applicants caused travel restrictions and issues of residence in France once the third and fourth applicants were to become adults. Nevertheless, the Court observed that all four of the applicants were able to settle in France and live together in a condition similar to that of other families. The obstacles that the first and second applicants faced were not so insurmountable, nor were there any indications of a possible separation from the French authorities. As a result of this, the Court deemed that there was no violation of Article 8, the right to family life, with respect to the first and second applicants.

Regarding the third and fourth applicant – the children – the Court found that they were in a position of legal uncertainty due to their being denied status under French law. This undermined their identity within the French society. Furthermore, due to the uncertainty of obtaining a French passport despite having a biologically linked parent (the first applicant and the father), the Court ruled that there would be a negative impact on their identity. This meant that the State had overstepped its margin of appreciation with respect to private life, as everyone should be able to establish their own identity, including the parent-child relationship that is formed through a cross-border surrogacy agreement between the biologically related parent and the child. The Court’s adoption of a child-focused approach proved that there is a focus on the best interests of the child and in any decision concerning them. For this reason, the Court held that there was a violation of Article 8, the right to private life, concerning the third and fourth applicants.

Significance

This case led the Court to reaffirm that Article 8 of the right to private life extends to every person, as they should be able to establish their own definition of their identity, including legal parentage. When identity is a crucial matter pertaining to a decision of the Court, the margin of appreciation given to the State must be reduced as the best interest of the child overcomes the public policy consideration of cross-border surrogacy arrangements. From this, the court ruled that the legal parent-child relationship formed between the biologically related parent (first applicant) and the children born out of a surrogacy agreement entails the parenthood to be established as it is a matter of identity on the part of the children to be linked with their biologically related parent.

This case also led the court to consider the impact of the non-recognition of parenthood on the parent who is not biologically related. The ECtHR unanimously gave an Advisory Opinion[14], which expanded the Mennesson principle, in that there will be a violation of Article 8 if the legally established parent-child relationship abroad between the child and the non-biologically linked parent is not recognised. Nonetheless, the Court maintained its position that where the challenges of non-recognition are not so insurmountable, there is no need for explicit recognition of the parent-child relationship. This is because the Court is reluctant to narrow the margin of appreciation that is afforded to the State.[15]

Conclusion

The Mennesson v France case enabled the court to discuss the critical issue of a parent-child relationship that was legally established abroad. It is deemed a violation when the non-recognition of it impairs the identity of the children. It further allowed the court to discuss ancillary matters such as the rights of the non-biologically linked parent, whilst there is an Article 8 right to recognise the parent- child relationship established abroad between the child and the non-biological linked parent, the Court is right to heed less attention to it where there are minimal difficulties as a result of non-recognition. The margin of appreciation afforded to the State should not be so narrow as it is within the State’s right to determine matters which violate public policy. It is a pivotal case that influences how Europe approaches cross-border surrogacy when considering legal parenthood issues.

Reference(S):

Primary Sources

Code Civil (Dalloz, 2025) art 16-7 <https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006419302/2024-02-15> accessed on 16 May 2025

European Court of Human Rights, Article 8, Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) 1950

Cases

Mennesson v France (2014) App no 65192/11 (ECtHR)

S.H. and Others v Austria  (2011) App no 57813/00 (ECtHR)

Secondary Sources

European Court of Human Rights, ‘Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through gestational surrogacy arrangement abroad and the intended mother’ (March 2019) < https://hudoc.echr.coe.int/fre?i=003-6380464-8364383> accessed 18 May 2025

European Court of Human Rights, ‘Totally prohibiting the establishment of a relationship between a father and his biological children born following surrogacy arrangements abroad was in breach of the Convention’ (Press Release, 26 June 2014) accessed on 17 May 2025

“Mennesson v. France | CRIN” <https://archive.crin.org/en/library/legal-database/mennesson-v-france.html> accessed on 19 May 2025

“Statelessness Case Law Database” (Statelessness Case Law Database) <https://www.statelessness.eu/updates/blog/mennesson-v-france-and-2019-ecthr-advisory-opinion-concerning-recognition-domestic-law>accessed on 16 May 2025

[1] Mennesson v France (2014) App no 65192/11 (ECtHR).

[2] European Court of Human Rights, Article 8, Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) 1950.

[3] Mennesson (n 1), 1.

[4] Mennesson (n 1), 7&8.

[5] ibid (n 1), 9.

[6] Code Civil (Dalloz, 2025) art 16-7 <https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006419302/2024-02-15> accessed on 18 May 2025.

[7] Mennesson (n 1), 68.

[8] ibid

[9] Mennesson (n 1), 72.

[10] Mennesson (n 1), 71.

[11] (2011) App no 57813/00 (ECtHR).

[12] ibid (n 1 ), 87.

[13] ibid (n 1), 96.

[14] European Court of Human Rights, ‘Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through gestational surrogacy arrangement abroad and the intended mother’ (March 2019) < https://hudoc.echr.coe.int/fre?i=003-6380464-8364383> accessed 18 May 2025.

[15] ibid, 51.