CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 juin 2014

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FRANCE   (Application no. 65192/11)               JUDGMENT [Extracts]       STRASBOURG   26 June 2014     FINAL   26/09/2014   This judgment has become final under Article 44 § 2 of the Convention.   In the case of Mennesson v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President ,   Angelika Nußberger,   Boštjan M. Zupančič,   Ganna Yudkivska,   Vincent A. De Gaetano,   André Potocki,   Aleš Pejchal, judges , and Claudia Westerdiek, Section Registrar , Having deliberated in private on 10 June 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 65192/11) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two French nationals, Mr Dominique Mennesson (“the first applicant”) and Ms Sylvie Mennesson (“the second applicant”), and two nationals of the United States of America, Ms Valentina Mennesson and Ms   Fiorella Mennesson (“the third and fourth applicants”), on 6 October 2011. 2.     The applicants were represented before the Court by Mr P. Spinosi, of the Conseil d’État and Court of Cassation Bar. The French Government (“the Government”) were represented by their Agent, Ms E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs. 3.     On 12 February 2012 notice of the application was given to the Government and the President of the Section decided that the proceedings in the present case should be conducted simultaneously with those in the case of Labassee v. France (no.   65941/11). 4.     The applicants and the Government each filed observations on the admissibility and merits of the case. 5.     On 10 October 2013 the President of the Section decided, under Rule   54 § 2 (a) of the Rules of Court, to put additional questions to the applicants and the Government, who replied on 19 and 21 November 2013 respectively. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The first and second applicants were born in 1965 and 1955 respectively. The third and fourth applicants were born in 2000. They all live in Maisons-Alfort. A.     Birth of the third and fourth applicants 7.     The first and second applicants are husband and wife. They were unable to have a child of their own because the second applicant is infertile. 8.     After a number of unsuccessful attempts to conceive a child using in vitro fertilisation (IVF) with their own gametes, the first and second applicants decided to undergo IVF using the gametes of the first applicant and an egg from a donor with a view to implanting the fertilised embryos in the uterus of another woman. Accordingly, they went to California, where the process is legal, and entered into a gestational surrogacy agreement. The applicants specified that, in accordance with Californian law, the “surrogate mother” was not remunerated but merely received expenses. They added that she and her husband were both high earners and therefore had a much higher income than the applicants and that it had been an act of solidarity on her part. 9.     On 1 March 2000 the surrogate mother was found to be carrying twins and, in a judgment of 14 July 2000, the Supreme Court of California, to which the first and second applicants and the surrogate mother and her husband had applied, ruled that the first applicant would be the “genetic father” and the second applicant the “legal mother” of any child to whom the surrogate mother gave birth within the following four months. The judgment specified the particulars that were to be entered in the birth certificate and stated that the first and second applicants should be recorded as the father and mother. 10.     Twins – the third and fourth applicants – were born on 25 October 2000 and their birth certificates were drawn up in accordance with the terms stated above. B.     Refusal by the French consulate to register the particulars of the birth certificates 11.     In early November 2000 the first applicant went to the French consulate in Los Angeles to have the particulars of the birth certificates entered in the French register of births, marriages and deaths and the children’s names entered on his passport so that he could return to France with them. 12.     The applicants stated that many French couples in their situation had previously succeeded in carrying out that procedure. The consulate rejected the first applicant’s request, however, on the grounds that he could not establish that the second applicant had given birth and, suspecting a surrogacy arrangement, sent the file to the Nantes public prosecutor’s office. C.     Investigation in respect of the first and second applicants 13.     As the US Federal Administration had issued US passports for the twins on which the first and second applicants were named as their parents, the four applicants were able to return to France in November 2000. 14.     In December 2000 a preliminary investigation was carried out at the request of the public prosecutor’s office. 15.     In May 2001 an investigation was commenced against a person or persons unknown for acting as intermediary in a surrogacy arrangement and in respect of the first and second applicants for false representation infringing the civil status of children. 16.     On 30 September 2004, in accordance with the submissions of the Créteil public prosecutor, the investigating judge gave a ruling of no case to answer on the ground that the acts had been committed on US territory, where they were not classified as an offence, and therefore did not constitute a punishable offence in France. D.     Proceedings in the civil courts 17.     In the meantime, on 25 November 2002, on the instructions of the public prosecutor’s office, the particulars of the birth certificates of the third and fourth applicants had been recorded in the central register of births, marriages and deaths in Nantes by the French consulate in Los Angeles. 18.     However, on 16 May 2003 the Créteil public prosecutor instituted proceedings against the first and second applicants in the Créteil tribunal de grande instance to have the entries annulled and the judgment recorded in the margin of the entries thus invalidated. He observed that an agreement whereby a woman undertook to conceive and bear a child and relinquish it at birth was null and void in accordance with the public-policy principle that the human body and civil status are inalienable. He concluded that, as the judgment of the Supreme Court of California of 14 July 2000 was contrary to the French concept of international public policy and of French public policy, it could not be executed in France and that the validity of civil-status certificates drawn up on the basis of that judgment could not be recognised in France. 1.     Judgment of the Créteil tribunal de grande instance of 13 December 2005, judgment of the Paris Court of Appeal of 25 October 2007 and judgment of the Court of Cassation of 17 December 2008 19.     By a judgment of 13 December 2005, the Créteil tribunal de grande instance declared the action inadmissible. It found that “the entries had been recorded on the sole initiative of the public prosecutor with the purpose, since avowed, of bringing proceedings to have the entries annulled”. It concluded from this that “an action by the public prosecutor on grounds of public policy which he himself ha[d] infringed could not be deemed admissible where the provisions of Article 47 of the Civil Code on which he [relied] allowed him to verify the validity of the certificates in any respect and to reject any request for registration that would render them binding in France”. 20.     The public prosecutor’s office appealed to the Paris Court of Appeal, which upheld the lower court’s judgment on 25 October 2007. The Court of Appeal also considered the public prosecutor’s action for annulment of the entries in the Nantes central register of births, marriages and deaths inadmissible as a matter of international public policy. It substituted its own grounds for that decision, however, finding that the contents of the entries were accurate as regards the judgment of the Supreme Court of California of 14 July 2000 and that the public prosecutor’s office was not disputing the fact that the judgment was binding on France or that, under Article 47 of the Civil Code, the certificates drawn up in California in accordance with the usual procedures in that State should be deemed valid. 21.     On 17 December 2008 the Court of Cassation (First Civil Division) quashed that judgment on the ground that the public prosecutor’s office had an interest in bringing proceedings for annulment of the entries since, as established by the Court of Appeal, the birth certificates in question could only have been drawn up following a surrogacy arrangement. It remitted the case to the Paris Court of Appeal with a differently constituted bench. 2.     Judgment of the Paris Court of Appeal of 18 March 2010 22.     By a judgment of 18 March 2010, the Paris Court of Appeal overturned the judgment remitted to it, annulled the entries pertaining to the birth certificates and ordered its judgment to be recorded in the margin of the invalidated birth certificates. 23.     Regarding the admissibility of the action brought by the public prosecutor’s office, the court found that it could not be seriously alleged that the prosecution authorities had contravened public policy or disrupted peaceful family relations by requesting that the contents of an entry that they themselves had ordered be annulled, since the purpose was to frustrate the effects of a foreign civil status which they considered contrary to French public policy or to guard against an application to have the entries recorded. 24.     The Court of Appeal ruled on the merits as follows: “... The birth certificates were drawn up on the basis of the Supreme Court of California’s judgment of 14 July 2000 which declared [the first applicant] the genetic father and [the second applicant] the legal mother of any child to which [the surrogate mother] gave birth between 15 August and 15 December 2000. The civil-status documents are therefore indissociable from the decision underlying them and the effectiveness of that decision remains conditional on its international lawfulness. Recognition, on national territory, of a decision delivered by a court of a State that is not bound to France by any convention is subject to three conditions: the indirect jurisdiction of the foreign court based on the connection between the court and the case; compliance of the merits and procedure with international public policy; and absence of circumvention of the law. It has been established in the present case that following a surrogacy agreement [the surrogate mother] gave birth to twins who were conceived from the gametes of [the first applicant] and of a third party and were relinquished to [the first and second applicants]. Under Article 16-7 of the Civil Code, whose provisions deriving from Law no.   94 ‑ 653 of 29 July 1994, and not amended by Law no. 2004-800 of 6 August 2004, are a matter of public policy by virtue of Article 16-9 of the same Code, any agreement concerning reproductive or gestational surrogacy is null and void. Accordingly, the judgment of the Californian Supreme Court, which indirectly validated a surrogacy agreement, contravenes the French concept of international public policy. Consequently, without having to ascertain whether the law has been circumvented, the entries in the French central register of births, marriages and deaths of the particulars of the US birth certificates naming [the second applicant] as the mother of the children must be annulled and the present judgment recorded in the margin of the invalidated birth certificates. [The applicants] cannot seriously claim that they have not had a fair hearing; nor do they have justifiable grounds for arguing that this measure contravenes provisions laid down in international conventions and domestic law. The concepts to which they refer, in particular the child’s best interests, cannot allow them – despite the practical difficulties engendered by the situation – to validate ex post facto a process whose illegality, established first in the case-law and subsequently by the French legislature, is currently enshrined in positive law. Furthermore, non-registration does not have the effect of depriving the two children of their US civil status or calling into question their legal parent-child relationship with [the first and second applicants] recognised under Californian law ...” 3.     Judgment of the Court of Cassation of 6 April 2011 25.     The applicants appealed on points of law, submitting that the children’s best interests – within the meaning of Article 3 § 1 of the International Convention on the Rights of the Child – had been disregarded and complaining of a breach of their right to a stable legal parent-child relationship and, further, of a violation of Article 8 of the Convention taken alone and in conjunction with Article 14. They submitted, further, that the decision of a foreign court recognising the legal parent-child relationship between a child and a couple who had lawfully contracted an agreement with a surrogate mother was not contrary to international public policy, which should not be confused with domestic public policy. 26.     At a hearing on 8 March 2011 the advocate-general recommended quashing the judgment. He expressed the view that a right lawfully acquired abroad or a foreign decision lawfully delivered by a foreign court could not be prevented from taking legal effect in France on grounds of international public policy where this would infringe a principle, a freedom or a right guaranteed by an international convention ratified by France. He noted in particular that in Wagner and J.M.W.L. v. Luxembourg (no.   76240/01, 28 June 2007) the Court had taken account, in its examination of the case under Article 8 of the Convention, of an “effective family life” and “ de facto family ties” between a single mother and the child she had adopted in Peru, without attaching any importance to the fact that the former had gone abroad in search of a legal system which would allow her to obtain what the law of her country of origin refused her. In the advocate-general’s opinion, if the same rationale were applied in the present case, even where domestic law had been circumvented, a legal relationship lawfully created abroad could not be prevented from producing the relevant legal effects where it concerned an effective family set-up and allowed it to function and evolve in normal conditions from the standpoint of Article 8 of the Convention. He also observed that the third and fourth applicants had been living in France for ten years and “[were being] brought up there by genetic and intended parents in a de facto family unit in which [they were receiving] affection, care, education, and the material welfare necessary to their development” and that this effective and affective family unit – fully lawful in the eyes of the law of the country in which it had originated – [was] “legally clandestine”, “the children having no civil status recognised in France and no parent-child relationship regarded as valid under French law”. As to whether that state of affairs infringed their “right to a normal family life”, the advocate-general replied as follows: “... At this stage two answers are possible: either – somewhat theoretically and largely paradoxically – the refusal to register the birth particulars is inconsequential and does not substantially affect the family’s daily life, which means that registration is a mere formality and it is therefore difficult to see any major obstacle in the circumstances to recording the details of certificates with such minimal legal effect that it is inconceivable that they are capable in themselves of shaking the foundations of our fundamental principles and seriously contravening public policy (since they do not intrinsically contain any mention of the nature of the birth). Alternatively, the refusal to register the birth details permanently and substantially disrupts the family’s life, which is legally split into two in France – the French couple on one side and the foreign children on the other – and the question then arises whether our international public policy – even based upon proximity – can frustrate the right to family life within the meaning of Article 8 [of the Convention] or whether, on the contrary, public policy of that kind, whose effects have to be analysed in practical terms as do those of the foreign rights or decisions that it seeks to exclude, should not be overridden by the obligation to comply with a provision of the Convention. If the second alternative is retained on the grounds that international conventions must take precedence over public policy based on a standard provided for in a legislative provision, this will not necessarily result in the automatic collapse of the barriers erected by the domestic public-policy provision in such circumstances. As long as the European Court has not given a clear ruling on the question of the lawfulness of surrogacy and allows the States to legislate as they deem fit in this area, it can be considered contrary to public policy to validate, on grounds of respect for family life, situations created illegally within the countries which prohibit them. However, where it is merely a question of giving effect on the national territory to situations lawfully established abroad – be this at the cost of deliberately disregarding the strictures of a mandatory law – there is nothing to preclude international public policy – even based upon proximity – from being overridden in order to allow families to lead a life in conformity with the legal conditions in which they were created and the de facto conditions in which they now live. Furthermore, the best interests of the child, envisaged not only under the New York Convention but also under the case-law of the Court of Human Rights which has established this criterion as a component of respect for family life, also militate in favour of this interpretation. At least this is the lesson that I think we can draw from the judgment in Wagner [ and J.M.W.L. ] ...” 27.     However, on 6 April 2011 the Court of Cassation (First Civil Division) gave judgment dismissing the appeal on the following grounds: “ ... the refusal to register the particulars of a birth certificate drawn up in execution of a foreign court decision, based on the incompatibility of that decision with French international public policy, is justified where that decision contains provisions which conflict with essential principles of French law. According to the current position under domestic law, it is contrary to the principle of inalienability of civil status – a fundamental principle of French law – to give effect, in terms of the legal parent-child relationship, to a surrogacy agreement, which, while it may be lawful in another country, is null and void on public-policy grounds under Articles 16-7 and 16-9 of the Civil Code. Accordingly, the Court of Appeal correctly held that, in giving effect to an agreement of this nature, the “American” judgment of 14 July 2000 conflicted with the French concept of international public policy, with the result that registration of the details of the birth certificates in question, which had been drawn up in application of that judgment, should be annulled. This does not deprive the children of the legal parent-child relationship recognised under Californian law and does not prevent them from living with Mr and Mrs Mennesson in France; nor does it infringe the children’s right to respect for their private and family life within the meaning of Article 8 of the Convention ..., or the principle that their best interests are paramount as laid down in Article 3 § 1 of the International Convention on the Rights of the Child ...” 4.     Request for certificate of nationality 28.     On 16 April 2013 the first applicant lodged an application with the Charenton-le-Pont District Court for a certificate of French nationality for the third and fourth applicants. The senior registrar sent him acknowledgement-of-receipt forms dated 31 October 2013 and 13 March 2014, indicating that the request “was still being processed in [his] department pending a reply to the request for authentication sent to the consulate of Los Angeles, California”. ... THE LAW I.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 43.     The applicants complained that, to the detriment of the children’s best interests, they were unable to obtain recognition in France of the legal parent-child relationship lawfully established abroad between the first two applicants and the third and fourth applicants born abroad as the result of a surrogacy agreement. They complained of a violation of the right to respect for their private and family life guaranteed by Article 8 of the Convention as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” ... B.     The merits 1.     Whether there has been an interference 48.     It is not in dispute between the parties that the refusal of the French authorities to legally recognise the family tie between the applicants amounts to an “interference” in their right to respect for their family life and accordingly raises an issue with regard to the negative obligations of the respondent State under Article 8 rather than their positive obligations. 49.     The Court agrees, reiterating that this was its approach in, among other cases, Wagner and J.M.W.L. (no. 76248/01, §   123, 28 June 2007) and Negrepontis-Giannisis v. Greece (no. 56759/08, § 58, 3 May 2011), which concerned the refusal of the Luxembourg and Greek courts respectively to recognise legally an adoption that had been established in foreign judgments. It specifies that, as in those cases, there has been an interference in the present case in the exercise of the right guaranteed by Article 8 not only regarding “family life” but also “private life”. 50.     Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of that Article as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned. The notion of “necessity” implies that the interference corresponds to a pressing social need and, in particular that it is proportionate to the legitimate aim pursued (see, for example, Wagner and J.M.W.L. , §   124, and Negrepontis-Giannisis , §   61, both cited above). 2.     Justification for the interference (a)     “In accordance with the law” (i)     The applicants 51.     The applicants alleged that there was an insufficient legal basis for the interference in question. In their submission, they had been justified, on the basis of the position under domestic law at the material time, in believing that their application for registration of the details of the birth certificates legally drawn up in California would not be refused on the ground of an infringement of public policy and would succeed without any difficulty. They referred to the principle of the attenuated effect of public policy according to which “the reaction to a provision that contravened public policy vari[ed] according to whether the case concerned the acquisition of a right in France or giving effect in France to a right validly acquired, without fraud, abroad” ( Rivière judgment; Cass. Civ., First Division, 17 April 1953). 52.     They pointed out, firstly, that Article 16-7 of the Civil Code was confined to enshrining the principle that any reproductive or gestational surrogacy agreement was null and void and did not provide that nullity extended to the legal parent-child relationship in respect of children thus conceived, particularly where that relationship was legally established through the effect of a foreign judgment. Furthermore, in their view, no provision of French law prohibited the establishment of a legal parent-child relationship between a child thus conceived and the woman and man to whom the child was relinquished, and Article 47 of the Civil Code, as worded at the relevant time, provided that civil-status documents drawn up in a foreign country were deemed to be valid in so far as they had been drawn up in accordance with the procedures used in that country. They submitted in that connection that the fact that the legislature had amended that provision in 2003 to make express provision for such certificates not to be deemed valid where the facts declared therein did not match the reality showed that compliance with that condition had not previously been 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 words, according to the Government, the applicants could not have been unaware of the public-policy nature of the prohibition on surrogacy arrangements under French law when they entered into the agreement, or of the difficulties likely to arise subsequently. 56.     They added that in accordance with the case-law on Article 47 of the Civil Code deriving from the judgment of the Court of Cassation of 12   November 1986, the authorities were justified in refusing to give effect in France to civil-status documents drawn up in a third State where the details recorded therein did not match the reality. They specified further that, other than in isolated cases, there had been no practice in France, at the date of birth of the third and fourth applicants, consisting in registering the birth particulars of children born as the result of a surrogacy agreement performed abroad. That distinguished the facts of the present case from those in Wagner and J.M.W.L. , cited above, in which the applicants had been deprived of the benefit of this type of practice with regard to adoption. (iii)     The Court 57.     According to the Court’s case-law, the expression “in accordance with the law” in Article 8 § 2 requires that the measure or measures in question should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects. In order for the law to meet the criterion of foreseeability, it must set forth with sufficient precision the conditions in which a measure may be applied, to enable the persons concerned – if need be, with appropriate advice – to regulate their conduct accordingly (see, for example, Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000 ‑ V, and Sabanchiyeva and Others v. Russia , no. 38450/05, §   124, ECHR 2013). 58.     The Court considers that these conditions are met in the present case. It notes first of all that the applicants have not adduced any evidence in support of their assertion that a more liberal practice used to exist in France regarding the recognition of a legal parent-child relationship between children born abroad as the result of a surrogacy agreement and the intended parents. It observes next that at the material time Articles 16-7 and 16-9 of the Civil Code expressly provided that surrogacy agreements were null and void and specified that this was on public-policy grounds. Admittedly, the Court of Cassation had not given a general ruling on the question of recognition under French law of the legal parent-child relationship between intended parents and children born abroad as the result of a surrogacy agreement. It had, however, previously specified – in a case in which the surrogate mother was the biological mother – that such an agreement contravened the principles of the inalienability of the human body and civil status. It had concluded in a similar case that this precluded the establishment of a legal parent-child relationship between the child thus 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 where it was necessary to annul a civil-status document concerning a French national that had been drawn up abroad in accordance with local procedures. 61.     The Court is not convinced by the applicants’ submission. The mere fact that the public prosecutor’s office itself requested registration of the judgment of the Supreme Court of California of 14   July 2000, in order to then request that the entry be annulled, cannot lead the Court to conclude that the aim pursued by the interference in question did not appear among those listed in the second paragraph of Article 8. Nor, however, is it convinced by the Government’s assertion that the aim was to “prevent disorder or crime”. The Court observes that the Government have not established that where French nationals have recourse to a surrogacy arrangement in a country in which such an agreement is legal this amounts to an offence under French law. It notes in this connection that, although an investigation was commenced in the present case for “acting as an intermediary in a surrogacy arrangement” and for “false representation infringing the civil status of children”, the investigating judge held that there was no case to answer on the ground that, as the acts had been committed on US territory, where they were not classified as a criminal offence, they did not constitute a punishable offence in France (see paragraphs 15-16 above). 62.     The Court understands, however, that the reason France refuses to recognise a legal parent-child relationship between children born abroad as the result of a surrogacy agreement and the intended parents is that it seeks to deter its nationals from having recourse to methods of assisted reproduction outside the national territory that are prohibited on its own territory and aims, in accordance with its perception of the issue, to protect children and – as can be seen from the study by the Conseil d’État of 9   April 2009 ... – surrogate mothers. Accordingly, the Court accepts that the Government may consider that the interference pursued two of the legitimate aims listed in the second paragraph of Article 8 of the Convention: the “protection of health” and “the protection of the rights and freedoms of others”. (c)     “Necessary in a democratic society” (i)     The applicants 63.     The applicants conceded that, as there was no common European approach, the States Parties in principle had a wide margin of appreciation regarding the content of legal provisions concerning surrogacy. They submitted that in the present case, however, the scope of that margin of appreciation was relative. In their submission, the question was not whether the prohibition of surrogacy agreements by a member State was compatible with the Convention. What was in issue here was a decision which, in their country of residence, deprived children born as the result of a surrogacy agreement lawfully performed abroad of civil-status documents indicating their legal relationship with their parents, including their biological father. They also considered that there was, at the very least, a favourable trend in Europe towards taking account of situations such as theirs. Referring to Wagner and J.M.W.L. , cited above, they pointed out that the need to take account of the child’s best interests had the effect of restricting the States’ margin of appreciation. 64.     Referring to that judgment (ibid., § 135), the applicants next submitted that the French courts had not carried out the requisite concrete and thorough examination of their family situation and the competing interests. The Court of Appeal had simply disregarded, without stating reasons, the ground of appeal based on an alleged violation of Article 8 of the Convention and the Court of Cassation had upheld that judgment, merely stating that the measure in question did not prevent the applicants from living together. 65.     Furthermore, according to the applicants, the rigid position of the Court of Cassation, which set out to maintain the blanket “deterrent effect” of the prohibition of surrogacy, amounted to precluding any pragmatic arrangement that would recognise – in the child’s best interests – the effects of a situation that had been lawfully created abroad. In their view, this was contrary to the Court’s case-law on Article 8, which had established a practical approach to the reality of family life (the applicants referred, in particular, to the judgment in Wagner and J.M.W.L. , cited above, § 133). 66.     In the applicants’ submission, the justification by the domestic courts was irrelevant since the principle of the inalienability of a person’s civil status was the subject of numerous practical arrangements. Transsexuals, for example, could obtain a change of the sex stated on their birth certificate, and the legal recognition of children lawfully born abroad as the result of a surrogacy agreement was the subject of debate among legal commentators, in Parliament and in society. It was all the more irrelevant since in principle French law was currently favourable to “intended” parents. Accordingly, in the case of the implantation of embryos in the womb of a third party, which was legal in France (the applicants referred to Articles L. 2141-4 et seq. of the Public Health Code), a woman who carried the embryo of another couple and gave birth to a child who was not biologically hers, could – as could her partner – establish a legal parent-child relationship with that child that excluded the biological parents. Similarly, in cases of donor insemination (also legal in France), no legal parent-child relationship could be established with the sperm donor, whereas a legal parent-child relationship with the mother’s partner could be established (the applicants referred to Articles 311-19 and   311-20 of the Civil Code). 67.     The applicants observed that an additional factor to be taken into account was that the interference did not allow the pursued aim to be achieved, since, as pointed out by the Court of Cassation, it did not deprive the children of the legal parent-child relationship with the mother and father recognised under Californian law and did not prevent the applicants from living together in France. Furthermore, their effective and affective family life was “legally clandestine”. This was particularly shocking in the case of the first applicant, who was deprived of recognition of the legal parent-child relationship with the third and fourth applicants by the refusal to record the particulars of the children’s birth certificates in the French register of births, marriages and deaths even though he was their biological father and there was nothing to prevent that relationship from being officially recorded. What was more, the applicants had no other possibility of having the family ties legally established, since the case-law of the Court of Cassation precluded not only registration of the birth details but also adoption or recognition of their de facto enjoyment of status ( possession d’état ). In that respect their case was clearly distinguishable from the situation examined by the Court in Chavdarov v. Bulgaria (no. 3465/03, 21 December 2010). 68.     The applicants also observed that the measure in question had “grossly disproportionate consequences” for the situation of the third and fourth applicants: without recognition of a legal parent-child relationship with the first two applicants, they did not have French nationality, did not have a French passport, had no valid residence permit (even if, as minors, they could not be deported), and might find it impossible to obtain French nationality and thus be ineligible to vote and ineligible for unconditional leave to remain in France; they could also be prevented from inheriting under the first two applicants’ estate. Furthermore, in the event of the first applicant’s death or should the first two applicants separate, the second applicant would be deprived of any rights in respect of the children, to their and her own detriment. In order to carry out administrative tasks for which French nationality or an official legal parent-child relationship were required (registration of the children for social-security purposes, enrolment at the school canteen or outdoor centre, or applications for financial assistance from the Family Allowances Office), they had to produce the US birth certificates together with an officially sworn translation in order to prove that the children were theirs, and the success of their application depended on the good will of the person dealing with it. The applicants pointed out in this connection that the advocate-general had recommended, before the Court of Cassation, recognising the legal parent-child relationship between the applicants, particularly on the ground of the children’s best interests, and that the Paris Court of Appeal itself had observed that the situation would create practical difficulties for the Mennesson family. They also referred to the report of the Conseil d’État of 2009 on the review of bioethical laws, which indicated that “in practice, families’ lives [were] more complicated without registration, because of the formalities that had to be completed on various occasions in life”. They added that, in Wagner and J.M.W.L. (cited above, § 132), the Court had acknowledged that in this type of situation there had been a failure to take account of the “social reality” and that “the child [had] not [been] afforded legal protection making it possible for her to be fully integrated into the [in that case] adoptive family”. They also questioned the purpose of refusing to register the particulars of birth certificates drawn up abroad if, as the Government maintained, such certificates took full effect in France and registration was a mere formality. 69.     The applicants also submitted that the Court’s ruling of no violation of Article 8 in A, B and C v. Ireland ([GC], no. 25579/05, ECHR 2010) and S.H. and Others v. Austria ([GC], no.   57813/00, ECHR 2011), which concerned access to abortion and medically assisted reproduction respectively, was based on the finding that, although domestic law prohibited these practices, it did not prevent individuals from going abroad to take advantage of them, and, in S.H. and Others v. Austria , that the legal father-child and mother-child relationship was thus “[governed by] clear rules of the Civil Code [that respected] the parents’ wishes”. 70.     In their replies to the additional questions put by the President of the Section (see paragraph 5 above), the applicants indicated that under Article   311-14 of the Civil Code, the legal parent-child relationship was governed by the law of the mother’s country on the date of the child’s birth (and where the mother was not known, by the law of the child’s country), that is, according to the case-law of the Court of Cassation (Civ., First Division, 11 June 1996), the law of the country indicated on the birth certificate. It was clear from the Supreme Court of California’s decision of 14 July 2000 that the official parents of the third and fourth applicants were the first two applicants. The French authorities and courts had refused to make that finding, however, with the result that as the mother was not recognised as having that status under French law, the legal parent-child relationship could not be governed by the law of her country. Accordingly, it was governed by the law of the country of the third and fourth applicants: US law. As the legal parent-child relationship between them and the first two applicants could not be established under French law and the Court of Cassation’s judgments of 13   September 2013