10
MENNESSON v. FRANCE JUDGMENT
required. They also stated that other couples who had entered into surrogacy
agreements abroad had succeeded in having their children’s birth details
registered.
53. Secondly, at the material time the case-law did not preclude
recognition of legal parent-child relationships on grounds of international
public policy. The Court of Cassation had only made a contrary ruling in
cases where the surrogate mother had also been the biological mother of the
child or where the surrogacy arrangement had been carried out in France
(judgments of 31 May 1991 and 29 June 1994), and the public prosecutor’s
office had decided not to appeal on points of law against a judgment of the
Paris Court of Appeal of 15 June 1990 validating the adoption of a child
conceived in the United States by a reproductive or gestational surrogacy
arrangement, whereas at the same time it had appealed against a judgment
validating the adoption of a child thus conceived in France. They considered
irrelevant the Government’s submission that the case-law on Article 47 of
the Civil Code deriving from the Court of Cassation’s judgment of
12 November 1986 meant that civil-status documents drawn up in a third
country did not have to be given effect in France where the details recorded
therein did not match the reality. They pointed out in this connection that
the certificates drawn up in the United States in their case did not purport to
establish a biological link between the second applicant and the third and
fourth applicants.
54. Thirdly, while other couples in their situation had easily obtained
passports for their children from the French consulate in Los Angeles, the
applicants had been faced with an abrupt change of practice in that respect,
designed to detect cases of surrogate mothers, which was comparable to the
sudden change in practice that had been the subject of a finding of a
violation by the Court in Wagner and J.M.W.L. (cited above, § 130).
(ii) The Government
55. The Government submitted that the interference had been “in
accordance with the law”. They observed in that connection that
Article 16-7 of the Civil Code, which was a public-policy provision,
provided that any reproductive or gestational surrogacy agreement was null
and void, and that the Court of Cassation had observed in its judgments of
31 May 1991 and 29 June 1994 that the principle of inalienability of the
human body and civil status, which were also a matter of public policy,
precluded the attribution of the status of father or mother by contract and
precluded giving effect to a parent-child relationship provided for in
surrogacy agreements. In their submission, the fact that those judgments
concerned the validity of adoption orders made following a surrogacy
arrangement carried out on French territory did not affect their relevance in
the present case. What was important was that they clearly established that
agreements of this kind contravened these public-policy principles. In other