Mennesson v France
As for the registration of the children’s birth, in November 2002, the French
authorities instructed the consulate to proceed with the registration. 18 In May
2003, the authorities filed a lawsuit against the couple to have the registration
cancelled. 19 In December 2005, the Créteil High Court of First Instance declared
the suit inadmissible, reasoning that the authorities, having instructed the
consulate to register the birth, could not then ask for it to be annulled. 20 The Court
of Appeal of Paris upheld the judgment in October 2007. 21 In December 2008, the
Court of Cassation overturned the judgment and returned the matter to the Court
of Appeal of Paris, which, in March 2010, cancelled the registration of the
children’s birth. 22 The Court of Appeal reasoned that the authorities’ aim was to
prevent a foreign civil status registration, which was ‘considered contrary to
French public policy’, from having any legal effects in France. 23 The judgment of
the courts in California was contrary to the ‘French concept of international public
policy’, making it appropriate to annul the registration. 24 Contrary to the opinion
of its own Advocate General, the Court of Cassation upheld the judgment. 25
In the meantime, the parents were unable to secure documents recognising their
children’s French nationality. 26
On 26 June 2014, the European Court of Human Rights found that France had
violated the children’s right to respect for their private life, protected under art 8
of the European Convention on the Protection of Human Rights and Fundamental
Freedoms (‘ECHR’). 27 Following that judgment, the case law in France changed,
making it possible for children born to a surrogate mother abroad to obtain a birth
certificate indicating the name of the intended father if he was also the biological
father. 28 It was still impossible for the intended mother to be included in the birth
certificate. 29 She could nonetheless adopt the children. 30
Following the 2014 judgment of the European Court of Human Rights, in
February 2018 the French Civil Judgments Review Court (which has the power to
reopen cases) granted a request for a re-examination of the couple’s appeal. 31 That
led to a new set of proceedings before the Court of Cassation. 32
In the course of those proceedings, the Court of Cassation made the first-ever
request to the European Court of Human Rights for an advisory opinion under
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ibid 3 [17].
ibid 3 [18].
ibid 4 [19], citing Tribunal de grande instance de Créteil [High Court of First Instance Créteil]
13 December 2005.
Mennesson (n 1) 4 [20], citing Cour d’appel de Paris [Paris Court of Appeal] 25 December
2007.
Mennesson (n 1) 4 [21], [22], citing Cour de cassation [French Court of Cassation], 07-20468
reported in (2008) Bull civ no 10, 251 (‘Application 07-20468’).
Mennesson (n 1) 4–5 [23], citing Cour d’appel de Paris [Paris Court of Appeal] 18 March
2010 (‘2010 Appeal’).
ibid (n 1) 5 [24].
Mennesson (n 1) 6–7 [25], citing Cour de cassation [French Court of Cassation], 10-19.053
reported in Bull civ no, 71.
ibid 8 [43].
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for
signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (‘ECHR’).
Advisory Opinion (n 2) 4 [14].
ibid 13 [2].
ibid.
ibid 4 [16].
ibid 4 [18].
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