2019 Statelessness & Citizenship Review 1(2) Protocol no 16 of the ECHR. 33 Courts of last resort in states such as France that have adopted the Protocol can request such an advisory opinion. 34 ISSUES In the original case, which led to the 2014 judgment, the couple asked the Court to find a violation of the family’s right to respect for family and private life. They argued that, contrary to the best interests of the child, they could not secure the recognition of their parental relationship with the children. 35 Article 8 of the ECHR requires the Court to examine whether there has been an interference with the right, whether the interference is in accordance with the law, whether the interference pursues a legitimate aim, and whether the interference is ‘necessary in a democratic society’ (ie proportionate). 36 The couple also argued that there was discrimination: the children were being treated differently from other children who had surrogate mothers where the identity of the egg donor was known; and they were being treated differently from other children in the same situation whose births had in fact been registered. 37 The couple also invoked the family’s right to a fair trial. 38 In the 2019 case, the Court of Cassation formulated the following questions in its request for an advisory opinion: 1. ‘By refusing to enter in the register of births, marriages and deaths the details of the birth certificate of a child born abroad as the result of a gestational surrogacy arrangement, in so far as the certificate designates the ‘intended mother’ as the ‘legal mother’, while accepting registration in so far as the certificate designates the ‘intended father’, who is the child’s biological father, is a State Party overstepping its margin of appreciation under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms? In this connection should a distinction be drawn according to whether or not the child was conceived using the eggs of the ‘intended mother’? 2. In the event of an answer in the affirmative to either of the two questions above, would the possibility for the intended mother to adopt the child of her spouse, the biological father, this being a means of establishing the legal mother-child relationship, ensure compliance with the requirements of Article 8 of the Convention? 39 33 34 35 36 37 38 39 European Convention on the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), as amended by Protocol No 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 2 October 2013, CETS No 214 (entered into force 1 August 2018) art 1. ibid. Mennesson (n 1) 5 [24], citing 2010 Appeal (n 23). ibid 9 [50], citing ECHR (n 27) art 8(2). The term ‘proportionality’ in this context arose from the Court’s interpretation of art 8(2) of the ECHR. Namely, where it states that interference will be in breach of art 8 if, in part, it cannot be justified as an interference ‘necessary in a democratic society’, meaning a necessity that ‘corresponds to a pressing social need and, in particular that is, proportionate to the legitimate aim pursued’: at [50] (emphasis added). ibid [103]. ibid [109]. Advisory Opinion (n 2) 2 [9]. 346