12
MENNESSON v. FRANCE JUDGMENT
conceived and the intended mother, and precluded, among other things,
registration in the register of births, marriages and deaths of the details
recorded in a birth certificate drawn up abroad ... It was on the basis of those
provisions of the Civil Code and in accordance with that explicit case-law
that the Court of Cassation concluded in the present case that the judgment
of the Supreme Court of California of 14 July 2000 was contrary to the
French concept of international public policy in that it gave effect to a
surrogacy agreement and that the entries in the French register of births,
marriages and deaths of the particulars of the birth certificates drawn up in
application of that judgment should be annulled. In the Court’s view, the
applicants could not therefore have been unaware that there was at least a
substantial risk that the French courts would rule accordingly in their case,
even if no provision of domestic law expressly precluded recognition of a
legal parent-child relationship between the first and second and the third and
fourth applicants, and notwithstanding the principle of the attenuated effect
of public policy (which, moreover, the Conseil d’État considers inapplicable
to this type of situation ...). The Court therefore finds that the interference
was “in accordance with the law” within the meaning of Article 8 of the
Convention.
(b) Legitimate aims
59. The applicants observed that the public prosecutor’s office had, of its
own initiative, requested registration of the US judgment delivered in their
case and subsequently, several months after obtaining registration, applied
to the domestic courts to have it annulled. They argued that, in the light of
those contradictory actions, the French authorities could not be deemed to
have pursued a legitimate aim.
60. The Government replied that the reason for the refusal to record the
particulars of the US birth certificates in the French register of births,
marriages and deaths was that this would have given effect to a surrogacy
agreement, which was formally forbidden under a domestic public-policy
provision and constituted a punishable offence if performed in France.
French law accordingly reflected ethical and moral principles according to
which the human body could not become a commercial instrument and the
child be reduced to the object of a contract. In their submission, the
“legitimate aims” of the interference were the prevention of disorder or
crime, the protection of health and the protection of the rights and freedoms
of others. They added that the reason the public prosecutor’s office had
requested that the particulars of the birth certificates of the third and fourth
applicants be recorded was precisely to enable it to request subsequently
that these entries be annulled. In doing so it had complied with Article 511
of the general circular on civil status of 11 May 1999, which prescribed
automatic registration where public policy was concerned, particularly