MENNESSON v. FRANCE JUDGMENT
9
in the present case in the exercise of the right guaranteed by Article 8 not
only regarding “family life” but also “private life”.
50. Such interference will be in breach of Article 8 of the Convention
unless it can be justified under paragraph 2 of that Article as being “in
accordance with the law”, pursuing one or more of the legitimate aims listed
therein, and being “necessary in a democratic society” in order to achieve
the aim or aims concerned. The notion of “necessity” implies that the
interference corresponds to a pressing social need and, in particular that it is
proportionate to the legitimate aim pursued (see, for example, Wagner and
J.M.W.L., § 124, and Negrepontis-Giannisis, § 61, both cited above).
2. Justification for the interference
(a) “In accordance with the law”
(i) The applicants
51. The applicants alleged that there was an insufficient legal basis for
the interference in question. In their submission, they had been justified, on
the basis of the position under domestic law at the material time, in
believing that their application for registration of the details of the birth
certificates legally drawn up in California would not be refused on the
ground of an infringement of public policy and would succeed without any
difficulty. They referred to the principle of the attenuated effect of public
policy according to which “the reaction to a provision that contravened
public policy vari[ed] according to whether the case concerned the
acquisition of a right in France or giving effect in France to a right validly
acquired, without fraud, abroad” (Rivière judgment; Cass. Civ., First
Division, 17 April 1953).
52. They pointed out, firstly, that Article 16-7 of the Civil Code was
confined to enshrining the principle that any reproductive or gestational
surrogacy agreement was null and void and did not provide that nullity
extended to the legal parent-child relationship in respect of children thus
conceived, particularly where that relationship was legally established
through the effect of a foreign judgment. Furthermore, in their view, no
provision of French law prohibited the establishment of a legal parent-child
relationship between a child thus conceived and the woman and man to
whom the child was relinquished, and Article 47 of the Civil Code, as
worded at the relevant time, provided that civil-status documents drawn up
in a foreign country were deemed to be valid in so far as they had been
drawn up in accordance with the procedures used in that country. They
submitted in that connection that the fact that the legislature had amended
that provision in 2003 to make express provision for such certificates not to
be deemed valid where the facts declared therein did not match the reality
showed that compliance with that condition had not previously been