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.
By a notarised agreement, Ms. Shirodkar, the mother of the child, then gave up her daughter by allowing Mr. Foulon to “take my daughter to France”. Questioned by the French consular services, Meenakshi Shirodkar said she knew neither the age nor address of Mr. Foulon, nor even if he was married or single, and that she had no intention of keeping in touch with him. The parents’ address on the birth certificate was that of the clinic.
In the case of Bouvet, two children were born on April 26, 2010 in the same clinic as Foulon’s daughter, in Mumbai. Their birth certificates indicated their parent as Pushpa Kharat, an Indian without profession born in 1982 and Philippe Bouvet, a French, then aged 45 years. The facts are thus identical to the Foulon case, the only difference being that Mr. Bouvet was living with a male partner who had already used the Indian surrogacy industry to acquire a set of twins.
MM. Foulon and Bouvet are probably the fathers of the children, and everything indicates that Meenakshi Shirodkar and Pushpa Kharat are also their genetic mothers, not just surrogates. The Hiranandani clinic said on its website that it performs surrogacy through artificial insemination of sperm into the surrogate mother and through the implantation of the embryo after IVF. In the first case, which is less expensive, the “surrogate” mother is the true genetic mother of the child: it is really her own child that she sells for a living. The terms under which the mother gives the child up also indicate that they regard the children as their own. In the case of Foulon, the Appeal Court also noted that “it is not just a question of a surrogacy contract prohibited by French law, but the purchase of a child, obviously contrary to public order.”
This new judgement of the European Court of Human Rights marks a step forward in the liberalisation of surrogacy and the “purchase of children”. While, by its judgement of the Mennesson and Labassee cases, the Court gave the right to married heterosexual couples who had acquired children in the United States, by the Bouvet and Foulon judgements it now rules in favour of single or gay men, who “hire a woman” for children in India. It is true that it is in the interest of these children to have their parentage with their biological parents established, and a fortiori with their fathers, but at no time did the Court criticise the morality of the practice of surrogacy which is contrary to the fundamental rights of children and women. The Court did not condescend any further to pay the least attention to the circumstances surrounding the birth of the children, and to the shameful and inhuman exploitation of their mothers.
In doing so, the European Court, with all his authority, endorsed “low-cost surrogacy” and “Gay surrogacy”; in realty, it promotes recourse to surrogacy for all persons in need of a child, and recognises — whether it likes it or not — a “right to a child for all”.
The saddest thing is that at no time did the Court question the facts of the case, the situation of surrogate mothers, their exploitation, and — what is worth recalling — the sale of children. It did not further contemplate on the consequences for these children who were ordered, paid for, abandoned by their mothers, and raised by a single father or a father living with his gay partner. As half Indians, they won’t forget their origins. One day these children will rebel, and they will be right to do so.
The moral blindness of the Court, prisoner of its libertarian ideology, is pathetic.
France was ordered to pay 45,000 euros in damages, costs and expenses.
Grégor Puppinck Director