France: revision of the law on medically assisted procreation. The Bishops: “It ratifies the absence of a father”

The draft revision of the French bioethics law, approved by the State Council and the Council of Ministers on 24 July, will be discussed by the National Assembly next fall. The Government, reads the preamble, “intends to define a legal framework that recognizes the freedom of expression of everyone, with respect for the collective interest, seeking a balance between scientific proposals, society’s claims, and the fundamental values that underlie France’s ethical identity, recognizing a special role to situations of suffering or distress faced by some people.” A number of bioethical issues, in addition to medically assisted procreation (MAP), such as organ donation or embryonic stem cell research, are the object of the new draft law. In a major development (an item of current debate) MAP will be available  to “any couple formed by a man and a woman, or two women or any unmarried woman”, refundable by the National Health Service, separating recourse to assisted procreation from the criterion of infertility. The donor’s anonymity right is another controversial aspect of the bill. While not setting a fixed limit on the number of embryos fertilised in vitro, their fate, if not implanted, is in the hands of the parent(s).

The limit is being extended “increasingly further away, just like unrestrained desires exacerbated by individualism and the allure of technology. With the new law this demarcation line exceeds “the point of no return.” The Catholic Church of France expressed a critical stand in a document signed by Msgr. Pierre d’Ornellas, Archbishop of Rennes, chair of a working group on bioethics of the French bishops’ conference, released on the eve of the debate on the text by the Council of Ministers.

The document underlines four controversial points: “the legal suppression of the father”: “A civil law is meant to work towards the creation of the best possible society”, the bishops write, “and it cannot be content with meeting the needs of particular groups, or deliberately creating an injustice”, which is what occurs by providing for the possibility of giving birth to “a child without father or without fatherly origin.” How can the law establish “ab initio the legal impossibility of having a father?”.

The criterion of equality is used as a “petition of principle”, the bishops remark. For “all modes of procreation” are placed on the same level, although in fact they are different. “With this project, the law recognizes an equality, i.e. the equivalence of a child born of the relationship between a man and a woman and from an inseminated woman.” These two situations are not equal, since one child can “naturally say ‘dad’, while the other cannot say this word because this possibility will be legally removed”. The note refers to an “attack on childbearing”, “legal disguise of the truth” and removal of the opinion whereby “the gestational bond is unworthy of attention”. This is but a short step to surrogacy, currently outlawed in France.

The third objection is that the law amounts to a “subjection to the power of will” and in particular to the “will of adults” which “takes precedence over the reality of the body and carnal bonds”, marking a regression with respect to the recognition of the rights of the child and the principle of the “best interests of the child”. This right is negated even in situations in which the law stipulates that “access to the identity of the donor of the gamete is subject to his/her consent.” This, “introduces discriminatory treatment of children subject to the discretion of adults”, as some may know at some point the name of their father and some may not. While the great ethical principles enshrined in French jurisprudence derive from the “principle of dignity”, now the law de facto replaces will or desire: how will it still be possible “to unite a society if it becomes the sum of communities of desires, each revolving around a purported desire?”.

The Government’s proposal incorporates three additional risks. Challenging the “principle of gratuitousness” whereby the person and the body cannot be the object of commodification. By opening medically assisted procreation to all women, the demand for sperm would increase to the point that French citizens would not find it “at zero cost” in France – because its sale is forbidden – but they would have to obtain it, thus buy it abroad. Crossing this “red line” means that it will no longer be possible to proclaim the full dignity of every human being and the respect he or she is entitled to. Secondly,

if desire becomes an element of law, we are moving towards liberal eugenics, especially since the “parental project” provided for by law but not clearly defined, may lead to the possibility of “demanding a child that possess a set of requested features.”

Thirdly, medicine moves from treating diseases or accompanying chronic diseases to becoming a instrument “that fulfils the desires of the non-sick”, with everything that this may entail.

Manif pour tous and other Catholic organizations have planned a demonstration for October 6 in Paris, while the debate has already hit front-page news in France. Criticism has been voiced, inter alia, by Sylviane Agacinski, a feminist philosopher who has warned of the risks of surrogate pregnancy for years. In a short essay published a few weeks ago (The disembodied man, from the carnal body to the manufactured body) the philosopher has once again signalled the risk of drifting towards “a global procreative market” along with the risks linked to the practice of “outsourcing of a part of the reproductive functions”, posing the secular consideration that “procreation (whether or not assisted) has nothing to do with sexual orientation but is linked to the asymmetry of the male and female genders, that in this context are neither equivalent nor equal.”