Surrogacy: The ECHR Endorses the Purchase of Children
from European Centre for Law & Justice:
On 21 July 2016, the European Court of Human Rights gave a lamentable judgement in the cases of Foulon and Bouvet v. France (Nos 9063/14 and 10410/14), which challenged the refusal by the French authorities to transcribe the parentage established in India for children born through commercial surrogacy. Applying its established case-law in the cases of Mennesson and Labassee (2014), the Court found that France had violated the right to respect children’s privacy while rejecting the allegation of a violation of family life of the adult buyers.
In the case of Foulon, a baby girl was born on July 31, 2009 at the Hiranandani clinic — which is specialised in surrogacy — in Mumbai, India. Her birth certificate showed that her mother was Meenakshi Shirodkar, an unemployed Indian born in 1980, and her father was Didier Foulon, a French architect born in 1971, living in the United States. The medical certificate from the clinic states that this girl was delivered through caesarean section, which is common in the case of children born through surrogacy. Indeed, Indian clinics often insist on a caesarean section without medical reason three weeks before term, so that the baby would not be marked by birth, and would have a round head. This also reduces the cost of upkeep of the mother and allows the purchaser to get his ticket in advance at a fixed date. The surrogate mothers do not receive adequate care after birth, leading to a high rate of maternal mortality.
A month after the baby’s birth, Didier Foulon, by a written document, swore “on [his]honour to pay for the financial costs of pregnancy, hospital bills, housing … In addition, had paid the sum of 100,000 rupees to ensure the comfort and proper nutrition of the mother, and also to ensure that she could foot her bills in [his] absence.” 100,000 rupees (about €1,300) correspond to three years’ salary of a worker. A few days after the birth of the child, he paid an additional 60,000 rupees to the clinic.
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