Adjudication without Frontiers
Edited by Horatia Muir Watt, Lucia Bíziková, Agatha Brandão de Oliveira and Diego P. Fernandez Arroyo
In a complex world with interjurisdictional mobility, surrogate motherhood and assisted reproductive technologies, what is parenthood? Two recent judgments by the European Court of Human Rights (ECtHR) demonstrate that it is possible to consider parenthood as a concept ‘under construction’; that the balance of interests at stake is proven a challenging task for courts. In Mennesson v. France, a married French couple engaged in an international surrogacy agreement with a woman from California in the United States; where such agreements are recognised by law. The embryos were formed from a donated egg and sperm from Mr. Mennesson. Following an in vitro fertilisation procedure, the surrogate became pregnant with twins. A Californian court had issued an order declaring that the Mennessons shall be recognized as the genetic father and legal mother once the children were born. The Californian birth certificate mentioned the couple as the mother, respectively the father, without any reference to the surrogate mother. Upon returning to France, French authorities refused to grant legal recognition to the parent-child relationship that had been legally established in the United States. The refusal of a French birth certificate was made on the grounds of public policy since surrogacy arrangements are not recognised by French law (vid. Cour de Cassation, 6 April 2011,n. 10-19.053). How compatible is this decision with the right to respect for private and family life, as articulated in Article 8 of the European Convention on Human Rights (ECHR)? The case resultantly went before the ECtHR.
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