Through surrogate motherhood, states can have significantly different approaches to the birth of children, ranging from allowing it to a complete ban. However, in the case of a child already born through surrogate motherhood in another country, the question pertains not only to the state's policy regarding that reproductive method but also to the child's identity, legal status, and their legal ties to the parents. This issue was examined by the European Court of Human Rights in the case of Mennesson v. France.
French spouses Dominique and Sylvie Mennesson, due to the wife's infertility, sought the services of a surrogate mother in California, USA, where the process was legal. The embryos were created using the husband's sperm and donor egg cells. In 2000, twin girls were born. The California court recognized Dominique Mennesson as the biological father of the children and Sylvie Mennesson as their legal mother, and the relevant information was included in the birth certificates.
However, French authorities refused to recognize this parental tie within the French legal system, arguing that the birth of children through surrogate motherhood contradicts French law.
The French authorities were aware that in the USA, the legal connection between the children and the Mennesson spouses was recognized, but in France, they refused to give significance to this fact. According to the ECHR's assessment, such a contradiction placed the children in a state of legal uncertainty and negatively affected their identity within French society.
It was particularly significant that the designated father was also the biological father of the children. At that moment, the French legal system effectively blocked not only the recognition of foreign birth certificates but also the establishment of parental ties through other means with the biological father. The ECHR considered that France could seek not to encourage its citizens to resort to a reproductive method abroad that is prohibited within its territory (as noted in paragraph 62 above). However, it becomes clear from the above that the consequences of non-recognition of the kinship ties between children conceived in this manner and their designated parents under French law are not limited only to the status of the initial applicants who themselves chose that path of reproduction. The consequences also extend to the children, whose right to respect for their private life—which implies that everyone should be able to affirm the essence of their identity, including kinship ties—has been significantly violated. Here arises the question of the compatibility of this situation with the best interests of the children, and any decision regarding the children should be guided by the protection of those interests.
Thus, although the Court did not find a violation of Article 8 of the ECHR regarding the Mennesson family's right to family life, it nonetheless recorded a violation of Article 8 concerning the children's right to private life. The legal origin of a child is an important component of their personal identity, and the state cannot extend the consequences of its policy to prevent surrogate motherhood in such a way that disproportionately harms the legal identity of a child who has already been born.