Mennesson v France HOLDING In its 2014 judgment, the Court found that the interference was ‘in accordance with the law’, because it had a sufficiently predictable basis in French domestic law: the couple should have known there was a serious risk the French courts would not allow the children’s births to be registered. 40 The Court also found that the interference had a legitimate aim: dissuading parents from travelling abroad to undertake surrogacy arrangements, which is part of protection of public health and the protection of the rights and freedoms of others. 41 When it came to the question of proportionality, the Court looked first at the rights of the parents, and then those of the children. The Court found that, as far as the parents were concerned, there was no violation: the parents were able, in practice, to live with the children and enjoy family life with them. 42 However, the interference was not proportionate when it came to the children. The children were confronted with a ‘worrying uncertainty as to the possibility of obtaining recognition of French nationality’.43 They would also be unable to inherit from their parent’s estates. 44 While France might want to discourage its citizens from travelling abroad to engage in surrogacy arrangements, the consequences raised serious questions about the best interests of the child. This was particularly so where one of the intended parents was the child’s biological parent. 45 As a result, France had violated the right to respect for the private life of the children. 46 The Court decided it was not necessary to consider the complaint about discrimination. 47 The Court also did not find that there were any fair-trial issues. 48 In the 2019 advisory opinion, the Court found that the right to respect for private life … 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’.49 The Court was particularly concerned with ensuring respect for the best interests of the child. The Court explicitly stated that ‘there is a risk that such children will be denied the access to their intended mother’s nationality’. 50 The Court also raised the possibility that the children might not be able to live in the intended mother’s country or inherit from her. 51 However, the Court did not find that France was required to register the intended mother as the ‘mother’ on the child’s French birth certificate. Any effective mechanism to recognise a genuine relationship between the child and the intended mother would suffice. 52 Adoption was a possible solution, even if it meant there would be some delay and legal uncertainty in the situation of the child. 53 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Mennesson (n 1) 11–12 [58]. ibid 13 [61]–[62]. ibid 13 [61]. ibid 25 [97]. ibid 25 [98]. ibid. ibid 26 [101]. ibid [108]. ibid [110]. Advisory Opinion (n 2) 10–11 [46]. ibid 9 [40]. ibid. ibid 11 [54]–[55]. ibid 11 [54]. 347