18
MENNESSON v. FRANCE JUDGMENT
actual extent of the interference with the applicants’ family life, that
interference being limited to their inability to obtain French civil-status
documents.
72. The Government stressed that in the interests of proscribing any
possibility of the human body becoming a commercial instrument,
guaranteeing respect for the principle that the human body and a person’s
civil status were inalienable, and protecting the child’s best interests, the
legislature – thus expressing the will of the French people – had decided not
to permit surrogacy arrangements. The domestic courts had duly drawn the
consequences of that by refusing to register the particulars of the civil-status
documents of persons born as the result of a surrogacy agreement performed
abroad; to permit this would have been tantamount to tacitly accepting that
domestic law could be circumvented knowingly and with impunity and
would have jeopardised the consistent application of the provision
outlawing surrogacy.
They added, on the specific point regarding failure to register the legal
father-child relationship, that this was due to the fact that the first and
second applicants had entered into the surrogacy arrangement as a couple
and that the respective situations of each person in that couple were
indissociable. They also considered that, having regard to the various
different ways in which the legal parent-child relationship could be
established under French law, giving priority to a purely biological criterion
“appear[ed] highly questionable”. Lastly, they submitted that “in terms of
the child’s interests, it seem[ed] preferable to place both parents on the same
level of legal recognition of the ties existing between themselves and their
children”.
73. The Government added that as surrogacy was a moral and ethical
issue and there was no consensus on the question among the States Parties,
the latter should be afforded a wide margin of appreciation in that area and
in the manner in which they apprehended the effects of the relevant legal
parent-child relationship established abroad. In their view, having regard to
that wide margin of appreciation and the fact that the applicants were
leading a normal family life on the basis of the US civil status of their
children and that the latters’ best interests were protected, the interference in
the exercise of their rights guaranteed under Article 8 of the Convention was
“entirely proportionate” to the aims pursued, with the result that there had
been no violation of that provision.
74. In their replies to the additional questions of the President of the
Section (see paragraph 5 above), the Government stated that the law
applicable to the establishment of the legal parent-child relationship
between the first two and the third and fourth applicants was, in accordance
with Article 311-14 of the Civil Code, the law of their mother’s country,
namely, according to the case-law of the Court of Cassation (Civ., First
Division, 11 June 1996, Bulletin civil no. 244), that of their birth mother. It