Mennesson v France

Parties (including notable third parties)

Mr Dominique Mennesson, Ms Sylvie Mennesson, Ms Valentina Mennesson and Ms Fiorella Mennesson (Applicants); The French Government (Respondent)

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Summary of Facts

The Applicants are husband and wife Dominique and Sylvie Mennesson (the first and second Applicants), who are French nationals; and Valentina Mennesson and Fiorella Mennesson (the third and fourth Applicants), who are twin siblings born in 2000 in the United States of America (‘USA’) and who automatically acquired nationality of the USA on the basis of the jus soli principle.

The first and second Applicants made several unsuccessful attempts to conceive a child using in vitro fertilisation (‘IVF’) with their own gametes. They then 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, who was not remunerated and was only compensated for expenses. They entered into a surrogacy agreement in California, where the process is legal. While the surrogate mother was pregnant, the Supreme Court of California 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 that the first and second Applicants should be recorded as the father and mother in the birth certificates.

The third and fourth Applicants were born on 25 October 2000 and they were issued birth certificates in the USA.

The first Applicant requested the French authorities to enter the details of the birth certificates into the French register of births, and to have the children’s names entered on his passport.

After decade-long court proceedings, the Applicants had been unable to secure recognition under French law of the legal parent-child relationship established between them in the USA. The French courts refused to transcribe the birth certificates based on the application of French international public policy (‘ordre public international’), which deems surrogacy agreements void as contrary to principles of French law regarding the inalienability of the human body and civil status.

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Legal Arguments

Legal Arguments by the Applicants

Relying on Article 8 (right to respect for private and family life) of the European Convention on Human Rights (‘ECHR’), the Applicants complained 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 as a result of the surrogacy agreement. The Applicants 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.

The Applicants claimed there was no sufficient legal basis for refusing the registration of birth certificates issued in California. They also noted that French authorities did not have a legitimate aim, given the public prosecutor’s office had initially requested registration of the US judgment of its own initiative and later requested its annulment, which was contradictory.

With regards to the necessity in a democratic society, the Applicants argued the margin of appreciation was limited because the issue was not the prohibition of surrogacy itself, but the refusal to recognise civil-status documents for children lawfully born abroad through surrogacy, and that the child’s best interests should restrict States’ discretion. The French courts did not conduct a thorough, concrete assessment of the family situation and competing interests. The principle of inalienability of civil status was not absolute, as French law allowed practical arrangements in similar contexts (e.g. embryo implantation and donor insemination). They noted the ‘grossly disproportionate consequences’ for the children (paragraph 68), including that they did not have French nationality, did not have a French passport, had no valid residence permit and faced a risk of exclusion from voting, inheritance, and permanent residency.

Legal Arguments by the Respondent

The Government submitted that the interference had been ‘in accordance with the law’ (paragraph 55), which provided that any reproductive or gestational surrogacy agreement was null and void, and that the principle of inalienability of the human body and civil status precluded the attribution of the status of father or mother by contract, and precluded giving effect to a parent-child relationship established via a surrogacy agreements.

The Government argued that the reason for the refusal to record the details of the US birth certificates in the French register was that this would have given effect to a surrogacy agreement, which was forbidden and constituted a punishable offence if performed in France.

The Government submitted that the failure to register the birth certificates did not preclude them from taking full effect in France, including that certificates of French nationality were issued on the basis of such birth certificates where it was established that one of the parents was French.

Outcome

The Court agreed with the undisputed fact that the refusal of the French authorities to legally recognise the family ties between the Applicants constitutes an interference with both the family life and private life of the Applicants, which needs to be justified under Article 8(2) ECHR.

The Court noted that the expression ‘in accordance with the law’ in Article 8(2) requires some basis in domestic law, but also refers to the quality of the law in question, and it considered that this was met in the case. It found that the interference was ‘in accordance with the law’ within the meaning of Article 8.

The Court accepted that the interference pursued two of the legitimate aims listed in Article 8(2), namely the ‘protection of health’ and ‘the protection of the rights and freedoms of others’, as the refusal to recognise a legal parent-child relationship established via a surrogacy agreement abroad sought to deter French nationals from resorting to assisted reproduction methods abroad that are prohibited on its own territory, with the aim to protect children.

With regards to the necessity in a democratic society, the Court agreed with the Applicant that states’ margin of appreciation varies, and while it is wide in cases that raise moral or ethical issues where there is no consensus within Council of Europe member states (such as surrogacy arrangements), it is also restricted ‘where a particularly important facet of an individual’s existence or identity is at stake’ (paragraph 77). Regard must be had to the essential principle that the best interests of the child are paramount.

In assessing whether the domestic courts duly took account of the need to strike a fair balance between the interest of the community and the interest of the Applicants, the children’s best interests being paramount, the Court distinguished two aspects:

(i) The Applicants’ right to respect for their family life

The lack of recognition necessarily affected the Applicants’ family life. Presenting US-issued documents in services was more complicated, and ‘a consequence … 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’ (paragraph 89). The Government had submitted that the children could obtain a certificate of French nationality by producing their US birth certificates, but the Court noted that it was still unclear whether that possibility did actually exist, including because the legal determination of the parentage is the core issue in the case, which would render the granting of a French nationality certificate particularly complex and uncertain. Ultimately, the Court found that the Frech courts had duly carried out an examination of the impact that the refusal had on the Applicants’ family life, and that the practical difficulties had been sufficiently overcome, and considered that there had been a fair balance between the Applicants’ and the State’s interests. The interference with family life was not severe enough to constitute a violation, given the state’s margin of appreciation on ethical issues.

(i) The right of the third and fourth Applicants to respect for their private life

The Court has observed that 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. It considered the children were ‘in a position of legal uncertainty’, as while it is true that a legal parent-child relationship is 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. … The Court considers that a contradiction of that nature undermines the children’s identity within French society’  (paragraph 960).

The Court further noted that ‘[w]hilst 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’ (paragraph 97).

The Court also noted the impact on inheritance rights and how the non-recognition affects the children themselves. Accordingly, a serious question arises as to the compatibility of that situation with the children’s best interests.

In the present case, as one of the intended parents was also the biological father of the children, the Court considered that preventing both the recognition and establishment under domestic law of their legal relationship with their biological father, the Respondent overstepped the permissible limits of its margin of appreciation.

The Court concluded there has been no violation of Article 8 with regard to the Applicants’ right to respect for their family life, but there had been a violation regarding the right of the third and fourth Applicants to respect for their private life.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	European Convention on Human Rights	8, 35, 41
Domestic	French Civil Code	16-7, 16-9, 18, 47
Domestic	French Criminal Code	227-12, 227-13
International	Convention on the Rights of the Child	Article 3 (Best interests of the child)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Adam Weiss, ‘Mennesson v France and Advisory Opinion Concerning the Recognition in Domestic Law of a Legal Parent-Child Relationship between a Child Born through a Gestational Surrogacy Arrangement Abroad and the Intended Mother’ (2019) 1(2) The Statelessness & Citizenship Review 343

• The article examines two landmark decisions from the European Court of Human Rights, Mennesson v. France (Application No 65192/11, 26 June 2014) and its subsequent Advisory Opinion (P16-2018-001, 10 April 2019). Weiss argues that while the specific case did not result in statelessness, the Court's reasoning exposes a systemic risk where children born via surrogacy abroad can be denied nationality if the parent's country refuses recognition, highlighting the vital role of birth registration as a first safeguard against statelessness.
• Weiss notes how this approach could apply to many other situations, particularly in migration. At a minimum, the judgment requires states to register the births of children born abroad through surrogacy, leaving a broad margin of appreciation for how to do so, including the possibility of allowing the intended parent to adopt the child.
• Weiss advocates for a broad interpretation of the judgment, asserting that the obligation to register a birth and establish a legal identity should extend beyond surrogacy to encompass any child with a connection to the state. This includes children born on the state's territory and children born abroad to citizen parents (especially in migration contexts). The principles affirming the child's independent rights override the circumstances of their birth or their parents' choices.

Máire Ní Shúilleabháin, ‘Surrogacy, System Shopping, and Article 8 of the European Convention on Human Rights’ (2019) 33 (1) International Journal of Law, Policy and the Family 104

• The article argues that ECtHR jurisprudence on international surrogacy, in particular Mennesson v France and Paradiso and Campanelli v Italy, has legitimised ‘system shopping,’ undermining domestic legislative choices without providing a convincing alternative analysis. Articles 7 and 8 CRC are clearly implicated where there is a risk of statelessness and may be invoked to argue against measures which legitimate international commercial surrogacy.
• The article offers the critique that the Court’s approach lacks coherence and fails to address broader human rights implications, including equality and non-discrimination for children born through surrogacy.

Jakub Valc, ‘Towards an International Consensus on Cross-Border Surrogacy’ (2025) 33 (3) Medical Law Review 1

• The author argues that in the absence of international consensus, ECtHR case law goes some way in harmonising national approaches by establishing a minimum standard of human rights protection in cross-border surrogacy. The basis is the best interests of the child, but it can be used to argue both for the preservation of the child/parent relationship and for the separation of the child from the intended parents.
• The inability to acquire the nationality of the intended mother in Mennesson may adversely affect the child's residence, inheritance, or parental care for the child in the event of the death of the second parent. Case law has strengthened legal certainty by establishing the right to identity, but questions remain as to the implementation of these standards.

Meiraf G. Tesfaye, ‘What makes a Parent? Challenging the Importance of a Genetic Link for Legal Parenthood in International Surrogacy Arrangements’ (2022) 36 (1) International Journal of Law, Policy and the Family 1

• This article analyses Mennesson v France and Paradiso and Campanelli v Italy to conclude that ECtHR case law obliges states who prohibit surrogacy to recognise legal parenthood only where there is a genetic link to one or both intended parents.
• The article advocates for the rejection of this differential treatment between surrogate children who do have or do not have a genetic link to their intending parents, and for the consistent application of the best interests of children in recognition of legal parenthood of children born out of international surrogacy arrangements. Recognition of the parent-child relationship is important to protect the identity, nationality and other rights flowing from legal parentage of all surrogate children without distinction.
• The article underscores that there should be no discrimination between 'legitimate' and 'illegitimate' children in matters such as the acquisition of nationality. Instances where children have been rendered ‘parentless’ or ‘stateless’ or both are in contravention of Article 8 ECHR and Articles 7 and 8 CRC. Non-recognition is a disproportionate measure.