2019 Statelessness & Citizenship Review 1(2) The French authorities have, in the past, refused to register the births of children born abroad through surrogacy arrangements organised by French parents. 4 This refusal will not necessarily lead to statelessness. In these two cases under review (which arise out of one set of facts), it did not: the children were born in the USA. 5 But if they had been born in a country without jus soli, the children would have been at risk of being stateless. Article 18 of the French Civil Code ensures that any child, born anywhere in the world, is a French citizen as long as one of their parents is a French citizen. 6 In practice, if the French authorities refuse to register the birth of such a child, France does not recognise that child as the child of a French citizen and so will not recognise that child as a French citizen herself. This raises important principles about the rights of children, including the wellknown best-interests principle 7 and the common-sense notion that children should not suffer because of their parents’ conduct. 8 FACTS The Mennesons are husband and wife. 9 They could not conceive a child. 10 They decided to have a child through a surrogacy arrangement, combining the husband’s sperm with a donor’s egg, and implanting the embryo in the uterus of another woman, who was not the egg donor. 11 They travelled to California, where surrogacy arrangements are legal. Prior to the birth of their twins, they obtained a court order from the Supreme Court of California stating that they would be named as mother and father on the birth certificate. 12 The children were born on 25 October 2000. 13 The French consular authorities in Los Angeles refused to register the children’s birth because the father could not provide evidence that the mother had given birth to the children. 14 The matter was referred to the responsible authorities in France. 15 The couple secured American passports for the children and returned to France with them. 16 In May 2001, prosecutors in France opened an investigation into whether the parents had committed a criminal offence; they closed the matter in September 2004, having decided that there was no basis for prosecuting the couple. 17 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Foulon v France (European Court of Human Rights, Fifth Section, Application Nos 9063/14 and 10410/14, 21 July 2016). ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside’: United States Constitution amend XIV § 1. Code civil [Civil Code] (France) art 18. Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 3(1) (‘CRC’). This notion is arguably covered by art 2 of the CRC: ‘States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the … activities … of the child’s parents’: ibid art 2. Mennesson (n 1) 2 [7]. ibid 2 [8]. ibid. ibid 2 [9]. ibid 2 [10]. ibid 3[12]. ibid 3 [14]. ibid 3 [13]. ibid 3 [16]. 344