Surrogacy: the ECtHR (yet again) fails to address the real issue

224657On 21 July 2016, the European Court of Human Rights has a new judgment concerning cases of two cases of (illegal) commercial surrogacy. The applications in Foulon and Bouvet v. France (Nos 9063/14 and 10410/14) 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 for their privacy of the children concerned, while rejecting the allegation of a violation of family life of the adult children-buyers.

It is certainly true that in both cases the buyers are the biological fathers of the children concerned; this time there could therefore be no doubt about the existence of a family relationship. This is what makes the case different not only from the Court’s absurd decision in the case of Paradiso and Campanella vs. Italy (soon due to be re-heard by a Grand Chamber), in which neither of the two “intended parents” had any biological link to the child created through surrogacy, but also from the cases of Menesson and Labassée, which concerned the transcription of Californian birth certificates in which the “intended” mothers, who had no biological relation to the children concerned, were falsely indicated as “mothers”. The birth certificates in the cases of  Foulon and Bouvet, which were issued in India and correctly indicate the respective Indian surrogate moms as mothers, at least contain no false statements, so that, as a result, this time at least the ECtHR does not oblige France to legally recognize an obvious falsity.

Nevertheless, it is regrettable that the Court continues to turn a blind eye to the real issue to be resolved: if a country like France for very sound ethical reasons prohibits the practice of surrogacy, which means does it have to enforce such a ban?

The refusal to legally recognize the transcription of a birth certificate might have been one of the very few instruments to make a ban against surrogacy efficient. By outlawing this (admittedly harsh) sanction, the Court renders the ban nugatory in practice. The Court should be aware that as a result of its failure to provide any hints as to possible alternative enforcement mechanisms, it could be suspected of wishing to play the role of an enabler of surrogacy and child trafficking, even if in fact this may not be intended.