CYIL vol. 11 (2020)

MONIKA FOREJTOVÁ – PAVLA BURIÁNOVÁ – VLADISLAV VNENK CYIL 11 (2020) the situation created by them in breach of important rules of Italian law. The Court accepts that the Italian courts, having assessed that the child would not suffer grave or irreparable harm from the separation, struck a fair balance between the different interests at stake, while remaining within the wide margin of appreciation available to them in the present case.” Through this decision the ECtHR has decided that there was not any breach of Article 8 of the Convention. A very similar situation occurred in the case Mennesson v. France, Application no. 65192/11, 34 in which a married couple of French nationality travelled to California with an intent to conclude a surrogacy agreement. For this purpose, the man from the ordering couple provided his genetical material, while woman genetical material was provided from a person different than both the woman from the ordering couple and the surrogate mother. This surrogacy led to the birth of twins and still before their birth the Californian Supreme Court regulated legal relations between the ordering couple and the surrogate mother in such a manner that the man and the woman from the ordering couple could be registered as parents in the certificates of birth of the children, which has really happened. The French Consulate, however, refused to register these children in vital statistics because the legal mother failed to prove the delivery of the children. Prosecution was initiated against the ordering couple in France, because complete surrogacy is a criminal offence in France, this prosecution was, however, discontinued, because the ordering couple could not bear criminal liability for the acts taking place in the territory of the State of California, where such acts are not criminal offences. Civil-law proceedings lasted for eight years, and for this time the children and legal parents were living together their usual family life. The result of the civil-law proceedings was the declaration of the record in the vital statistics as invalid and its erasure. Since the parenthood of the man from the ordering couple to both the children was evidenced in this case, the ECtHR decided, through the judgement in the case Mennesson v. France 35 , of 26 June 2014, that by refusing the legal recognition of the relationship between the daughters and their biological father the respondent state exceeded the space for consideration which is granted to it by Article 8 of the Convention, and therefore Article 8 of the Convention was breached. The ECtHR stated in this decision, among other things, that: “ … the third and fourth applicants are in a position of legal uncertainty: while it is true that a legal parent-child relationship with the first and second applicants is acknowledged by the French courts in so far as it has been established under Californian law, the refusal to grant any effect to the US judgment and to record the details of the birth certificates accordingly shows that the relationship is not recognised under the French legal system.” “In the case dealt with the daughters face a worrying uncertainty as to the possibility of obtaining recognition of French nationality, in spite of the fact that the applicant, a French national, is their biological father. The measure objected has furthermore consequences for inheritance rights of the daughters, as in the case of death of the first applicant they would be treated as non-related persons in spite of being his biological daughters. ” In the conclusion, the ECtHR provided quite a suitable statement: “ The Court took cognisance of the state’s interest in deterring its nationals from using the possibility of surrogacy, which is provided by some legal orders, nevertheless, it stated that refusal of recognition of relationship has an impact not only on the parents who have decided for a method of conception which is forbidden by national law, but also on actual children concepted in such a way, while affecting their right to identity in 34 Available from:$$WebSearch1?SearchView&Query=(%5BNaz ev%5D%3D%22mennesson%22&SearchMax=0Start=1&Count=1500&pohled=1&searchorder=4. 35 Case Mennesson v. France , (Application no. 65192/11).


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