16
MENNESSON v. FRANCE JUDGMENT
of situation there had been a failure to take account of the “social reality”
and that “the child [had] not [been] afforded legal protection making it
possible for her to be fully integrated into the [in that case] adoptive
family”. They also questioned the purpose of refusing to register the
particulars of birth certificates drawn up abroad if, as the Government
maintained, such certificates took full effect in France and registration was a
mere formality.
69. The applicants also submitted that the Court’s ruling of no violation
of Article 8 in A, B and C v. Ireland ([GC], no. 25579/05, ECHR 2010) and
S.H. and Others v. Austria ([GC], no. 57813/00, ECHR 2011), which
concerned access to abortion and medically assisted reproduction
respectively, was based on the finding that, although domestic law
prohibited these practices, it did not prevent individuals from going abroad
to take advantage of them, and, in S.H. and Others v. Austria, that the legal
father-child and mother-child relationship was thus “[governed by] clear
rules of the Civil Code [that respected] the parents’ wishes”.
70. In their replies to the additional questions put by the President of the
Section (see paragraph 5 above), the applicants indicated that under
Article 311-14 of the Civil Code, the legal parent-child relationship was
governed by the law of the mother’s country on the date of the child’s birth
(and where the mother was not known, by the law of the child’s country),
that is, according to the case-law of the Court of Cassation (Civ., First
Division, 11 June 1996), the law of the country indicated on the birth
certificate. It was clear from the Supreme Court of California’s decision of
14 July 2000 that the official parents of the third and fourth applicants were
the first two applicants. The French authorities and courts had refused to
make that finding, however, with the result that as the mother was not
recognised as having that status under French law, the legal parent-child
relationship could not be governed by the law of her country. Accordingly,
it was governed by the law of the country of the third and fourth applicants:
US law. As the legal parent-child relationship between them and the first
two applicants could not be established under French law and the Court of
Cassation’s judgments of 13 September 2013 had annulled the recognition
of paternity by biological fathers of children born as the result of a
surrogacy agreement performed abroad ..., the third and fourth applicants
could not acquire French nationality under Article 18 of the Civil Code (“a
child of whom at least one parent is French has French nationality”) even
though the first applicant was their biological father. The applicants added
that, notwithstanding the circular of 25 January 2013 ..., the third and fourth
applicants could not obtain a certificate of nationality. They submitted that,
as a result of the judgment delivered in their case by the Court of Cassation
and its decisions of 13 September 2013 describing as “fraudulent” the
process by which the birth certificate of a child born abroad of a surrogacy
agreement was drawn up, the US birth certificates of the children were