Access to Assisted Reproductive Technologies

The Case of France and Belgium

Jennifer Merchant

• Publisher: Berghahn Books
• Year: 2019
• ISBN:
  9781789204322
• Edition: 1
• Topic: Medicina
• Subtopic: Ginecología, obstetricia y partería

Despite France and Belgium sharing and interacting constantly with similar culinary tastes, music and pop culture, access to Assisted Reproductive Technologies are strikingly different. Discrimination written into French law acutely contrasts with non-discriminatory access to ART in Belgium. The contributors of this volume are social scientists from France, Belgium, England and the United States, representing different disciplines: law, political science, philosophy, sociology and anthropology. Each author has attempted, through the prism of their specialties, to demonstrate and analyse how and why this striking difference in access to ART exists.

Part I

VISIBLE BORDERS LAW AND PUBLIC POLICY

Chapter 1

ART AND FRENCH LAW

THE ADVANTAGES AND INCONVENIENCES OF THE THERAPEUTIC MODEL

Laurence Brunet

It is impossible to understand the singularity of French law concerning assisted reproductive technology (ART) – established for the first time in 1994 – without taking into account the legal bioethical framework that governs it. In 1994, the goal of the French legislature was not only to regulate assisted reproductive practices, but to identify common values in an effort to establish norms for all medical uses of the human body. From the start of the parliamentary proceedings in the 1980s, several camps clashed (Mehl 1999). Meanwhile, the civil society outside the circles of experts such as the National Consultative Ethics Committee largely remained silent (Mehl 1998).¹ The originality of the French approach, therefore, was its codification of general principles that express a minimum political consensus, one that lies somewhere between liberal openness to scientific progress and distrust of medical and scientific practices that could harm the human person. This led to the vote of two laws on 29 July 1994 that instituted a framework using a two-pronged approach:² first, major principles concerning the respect of the human body were introduced into the Civil Code (Chapter 8), and second, the Code of Public Health established the rules governing various biomedical practices, including ART.

This double approach is intricately interwoven. In the French Civil Code, alongside the principles that ensure ‘the primacy of the individual’ and prohibit ‘any offense to the dignity of said individual’ (art. 16-1 c. civ.), one finds rules regarding the non-ownership of the human body and the non-commercial removal or transfer of any part of the body (art. 16-5 and 16-6 c. civ.), rules that were intended to be applied specifically to the field of gamete and embryo donation. The principle of the anonymous donation of body parts or materials remains one of the founding determinants of French bioethics, and states that ‘the donor cannot know the identity of the recipient, nor can the recipient know that of the donor’ (art. 16-8 c. civ.). This principle is perfectly illustrated by the rule of anonymity that governs the donation of gametes and embryos. Adding to this approach, we should mention a principle that directly concerns ART: that which states that all surrogacy contracts are null and void (art. 16-7).

It is clear that the general principles iterated in the French Civil Code are mutually binding. The condemnation of surrogacy contracts, for example, strengthens the principle of non-ownership. Similarly, the principle of anonymity was designed as a corollary of the principles of non-ownership and free disposal of human body parts: by preventing the donor and recipient from knowing each other, the state legislature effectively prevented the existence of a market where human bodily material could be directly bought and sold ‘over the counter’ (Thouvenin 1995; Camby 2009). A general, uniform and mandatory regime was thus established in 1994 to oversee all uses of the human body, beginning with ART techniques. According to national legislation, this bioethics ‘charter’ was intended to be permanent and not to be considered for any type of modification in the two subsequent revisions of the second part, which expressly provided the legislature to adapt the biomedical framework to scientific progress. Hence, while the regulation of different practices listed in the Code of Public Health (CSP) was amended twice (on 6 August 2004 and 7 July 2011), the block of general principles has remained unchanged, protected in a specific chapter of the French Civil Code.³

It is important to analyse the two-pronged framework of the French bioethics law because it is both unique to France and a major obstacle to any development in practices and standards. This framework explains why the evolution of ART techniques has remained subject to full compliance with the principles of non-commercial practices and anonymity that continue to govern the circulation of bodily material. However, the originality of the French bioethics law is not limited to its fundamental principles, which guarantee respect for the human body and its elements. This originality is just as apparent when we focus on a particular field of bioethics, that of assisted reproductive technologies (ART).

The uniqueness of the normative framework of ART lies in its purpose, which has remained unchanged since 1994, and is linked to these new reproductive technologies. The latter are allowed only insofar as they can provide a medical solution to a physiological dysfunction. The therapeutic model underlying the framework governing ART has thus led to the establishment of strict access conditions. The first part of this chapter is devoted to the application of the different components of this therapeutic model. In the second part, we will examine the limits of this normative framework in light of the restructuring of family patterns and the rise of cross-border ART (Rozée 2011).

Many Borders Due to the French Therapeutic Model

The therapeutic model that serves as the starting point for the regulatory framework concerning ART is composed of three parts. It imposes strict limits on access (A), but implies generous support from the community (B), all the while providing specific rules regarding filiation in the case of gamete donation (C).

The Medical Aim of ART

This goal dictates strict conditions of access, and gives medical teams broad power in deciding who can and cannot access ART.

Limits to Access

ART is characterized as a ‘medical response to a medical problem’ (Assemblée Nationale [French National Assembly] 2010). The law states that it ‘seeks to remedy the infertility of a couple, or prevent the transmission of a particularly serious illness from a member of the couple to the child’ (art. L. 2141-2 of the CSP).

ART in France cannot be considered as ‘comfort care’ but as a means of ‘repairing an essential function of the human species; reproduction’ (Assemblée Nationale [French National Assembly] 2010). The wording of the law was amended in 2011 to leave no doubt on this point, and insists that ‘the pathological nature of [the patient’s] infertility’ be ‘medically diagnosed’. ART is explicitly described within a therapeutic framework, and cannot simply constitute an alternative means of procreation, left to the discretion of individuals. This point precludes the admission of infertility due to sexual orientation or privacy as a reason for recourse to ART. Undergoing ART for any other purpose entails severe punishment by the law (art. L. 2162-5 CSP: five years’ imprisonment and a 75,000 euro fine).

Since ART in France serves to alleviate the inability to procreate naturally, it must necessarily be modelled on the pattern of natural procreation. Consequently, under the law, only a heterosexual couple may access ART. ‘The man and woman in the couple must be living and of child-bearing age, and must first consent to embryo transfer or insemination’ (art. L. 2141-2 al. 2).⁴ Since the second revision of 7 July 2011, it is no longer necessary to be married, nor is it necessary for unmarried couples to provide evidence of a vie commune (i.e. proof of a ‘conjugal life’ such as a shared bank account, bills under both names, etc.). Proof of the stability and continuity of the couple is also no longer required, but the medical team must nevertheless ensure that a couple wishing to access ART at the very least live under the same roof. Therefore, the law continues to state that should the couple cease to live together, continuation of treatment will be denied.

By requiring both members of the couple to be alive, the law effectively prohibits all post mortem reproduction. This prohibition was expressly mentioned by the legislature in 2004, which stated that ‘the death of one of the two members of the couple precludes insemination or embryo transfer’. This clarification was added in response to political and social controversies that followed several cases brought before the courts, in which widowed wives requested the restoration of gametes that were frozen before the deaths of their husbands, or the implantation of cryopreserved embryos in order to carry out their parental projects.⁵

The framework required by French law in order to access ART is supposed to ensure the child’s best interest: a family unit built by his or her (two) parents is considered to be the most suitable structure within which to raise a child, as French law still finds that it is in the child’s best interest to have ‘a father and a mother, no more, no less’ (Théry 2010: 5). It must be understood that such a framework, which mimics the traditional family model of a heterosexual couple, initially worked towards gaining social acceptance of medical reproductive techniques in France, which continue to be accused by certain movements of flouting the traditional means of procreation.⁶

The ban on double gamete donation can also be attributed to the therapeutic model, as well as the pressure to imitate ‘natural laws’ of procreation. French law contains an exhaustive list of techniques that ART centres are allowed to implement. The list of biological processes used in ART was established by the Ministry of Health after having consulted the Agency of Biomedicine (art. L. 2141-1 CSP).⁷ The law requires that the embryo originates from at least half the gametes of one member of the couple (art. L. 2141-3 CSP). Instructions for the use of a third-party donor are also laid out in detail; one couple can host another couple’s embryo only when no other solution is possible, whether due to double infertility, or because one member of the couple is infertile and the other risks passing down a genetic disease to the child (Lévy-Dutel 2015). Furthermore, embryo hosting is subject to a binding legal procedure both for the couple that gives away its surplus embryos and for the couple who will receive the embryos (art. L. 2141-6 CSP). It is clear that the legislature intended to ensure a genetic foundation for ART as often as possible, in response to the desire of infertile couples to have a child who will inherit half of their DNA. The existence of a biological link, however minimal, is believed to facilitate the integration of the child into his or her family.

The Terms of the Decision

It is precisely with the aim of protecting the child’s best interest that the medical team plays a key role in access to ART. The law generally reserves discretion for the medical team prior to ART.

Prior to carrying out an ART procedure, the members of the centre’s multidisciplinary medical team must meet with the couple for an interview. This interview serves to inform the couple on the legal and regulatory framework of ART, on the different technical methods that may be employed, each method’s success and failure rate, and the risks and constraints associated with them. A guide supplementing this information must also be provided. One month after the final interview, the couple’s request must be confirmed in writing in order to be considered valid. These discussions are an opportunity to ‘verify the motivation of the couple’ and to remind them that adoption is a possible alternative (art. L. 2141-10 CSP).

French law attributes to the doctor the responsibility of protecting the interests of the unborn child. The doctor can, after consulting with the multidisciplinary team, postpone the implementation of ART if he or she considers that extending the waiting period ‘is in the interests of the unborn child’. Where the law makes a provision for a deferral, deontological rules allow the medical team to ‘refuse support within the limits set by law and the code of ethics’ (see the order of 3 August 2010 concerning ‘Rules of Good Clinical and Laboratory Practice of Medically Assisted Procreation’, II.2). The regulatory framework thus allows the medical team to express its possible doubts about the advisability of an ART technique. Sometimes, the team can be placed in a delicate position, caught between providing assistance to an infertile couple, evaluating alternative therapeutic procedures, and fulfilling their responsibilities to the future child. Nevertheless, the law stresses the need for a thorough and collective discussion of problematic case...