MENNESSON v. FRANCE JUDGMENT
13
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 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