Part II. European Law on Nationality and Statelessness takes into account that an essential aspect of the identity of individuals is at stake where the legal parent-child relationship is concerned. The margin of appreciation afforded to France therefore needs to be reduced. The ECtHR continues: “Moreover, the solutions reached by the legislature – even within the limits of this margin – are not beyond the scrutiny of the Court. It falls to the Court to examine carefully the arguments taken into consideration and leading to the solution reached and to determine whether a fair balance has been struck between the competing interests of the State and those directly affected by that solution. In doing so, it must have regard to the essential principle according to which, whenever the situation of a child is in issue, the best interests of that child are paramount.”698 The Court finds that France overstepped its margin of appreciation by the nonrecognition of the legal parent-child relationships for the children as part of their right to respect for private life in light of the consequences thereof. Furthermore, the ECtHR questions the compatibility of that situation with the best interests of the child and states that “a serious question arises as to the compatibility of that situation with the children’s best interests, respect for which must guide any decision in their regard”.699 The Court concludes that there has been a violation of Article 8 of the ECHR with regard to the two children in this case. This case is highly relevant to nationality and statelessness of children because the non-recognition of the legal parent-child relationships in this case had the consequence that – at the time of the judgment – the children had not been granted French nationality. In its reasoning, the Court also recalls its Genovese judgment by reminding us of the fact that nationality is an element of a person’s identity.700 Because of non-recognition of the legal parent-child relationships, uncertainty exists as regards the possibility of the children to acquire a nationality, which could have “negative repercussions on the definition of their personal identity”.701 Moreover, in the advisory opinion that the ECtHR issued on this case upon request of the French Court of Cassation, it was clarified that private life under Article 8 ECHR “of a child born abroad through a gestational surrogacy arrangement requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother”.”702 698 699 700 701 702 132 Ibid, para 81. Ibid. para 99. Ibid, para 97. Ibid. 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 Request no. P16–2018–001 (ECtHR, 10 April 2019) para 46. On the Advisory Opinion, also refer to Adam Weiss, ‘Case Note: 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 Statelessness and Citizenship Review 343. Intersentia