Female empowerment in French bioethics law: The impact of 2020’s proposed reform

Clodagh Kelsh

        On 22 January 2020, France’s Senate voted 160-116 in favour of a Bill that allows single women and lesbian couples access to artificial reproductive technology (ART) (hereafter ‘the Bill’).[1]  Until the Bill comes into force, France is 1 of the 11 European countries who limit access to ART to heterosexual couples with a diagnosis of infertility.[2]

 

This article will trace French bioethics law, and evaluate the reproductive freedom and empowerment afforded to women as a result.  In doing so, it will be argued that French bioethics law creates a hierarchical model of female empowerment whereby some are more empowered than others:

·     The top tier of this hierarchy consists of women in a heterosexual relationship, where both her and her partner are of child-bearing age, but are medically infertile. This tier has been afforded reproductive freedom and empowerment through access to ART since 1994.  Access is subsidised in full by national health insurance for women up to age 43, with limits of 4 attempts at IVF and 6 attempts at artificial insemination.[3]

·     The middle tier consists of single women and lesbian couples who do not have access to ART under the current law, but should do under the Bill’s drafting.  Whilst this reform should afford top tier freedom to the middle tier, it is interesting to note its historically subordinate position and the controversy surrounding reform.

·     The bottom tier consists of women seeking to use a surrogate, surrogacy being formally prohibited under French law since 1991. This bottom tier is thus afforded no reproductive freedom or empowerment beyond access to adoption.

This hierarchical model is based on a naturalistic and heteronormative conception of the family, procreation transgressing from this conception being contrary to social policy or indeed a form of exploitation in the case of surrogacy.

 

It should be noted that this article works off the premise that empowerment is afforded through reproductive freedom, i.e. the freedom to reproduce how one wishes, whether that be naturally, through use of ART, or with the aid of a surrogate.  Such reproductive freedom empowers women to make autonomous decisions about their body, pregnancy and motherhood from conception to gestation, and take advantage of available medical or human assistance whether by choice or as a result of necessity.

 

The legislative framework of French bioethics law

 

           The legislative framework of France’s bioethics law concerning ART is contained in Article L2141 of the Code de la Santé Publique.[4]  Put in place in 1994 and with only minor revisions in 2004 and 2011, this law is one of the most rigid in Europe in this field.[5]

 

L2141-2 dictates that recourse to ART is constituent on the satisfaction of three criteria: (a) a heterosexual couple, (b) alive, and of child-bearing age, (c) who consent prior to embryo transfer or insemination.  However, the statute also states that the purpose of ART is: (1) to remedy the infertility of the couple; or, (2) to prevent the transmission of a particularly serious disease to a child or member of the couple. In turn, ART’s purpose becomes another criterion to be satisfied.  Indeed, the pathological nature of the infertility must be medically diagnosed.

 

L2141-1 also re-affirms the prohibition of surrogacy, as held in a 1991 decision of the Court of Cassation[6]and codified in Article 16-7 of the Code Civil[7].  Prohibition is on the basis that surrogacy is contrary to the fundamental principles of bioethics, particularly the inalienable nature of the human body as stated in Article 16-1 of the Code Civil.[8]

 

The 2019/2020 bioethics Bill will reform and extend L2141.  This Bill is part of wider social reform, as promised in Emmanuel Macron’s 2017 presidential campaign.  Reforms proposed under the Bill include: extended access to ART for single women and lesbian couples; longer embryo storage; and partial lifting of donor anonymity.  Each of these reforms will be debated between the National Assembly and the Senate in accordance with French constitutional law.  As of 31 July 2020, the Bill has had its 1st reading in both the National Assembly and Senate, its 2nd reading in the National Assembly, and is currently awaiting its 2nd reading in the Senate.[9]

 

This article will be limited to reform concerning extended access to ART for single women and lesbian couples.  Under its current drafting, the Bill proposes amending L2141-2 to:

 

“Assisted reproduction is intended to respond to a parental project. Any couple made up of a man and a woman or two women or any unmarried woman have access to medically assisted procreation after the applicants' individual interviews with members of the multidisciplinary clinical-biological medical team carried out in accordance with the procedures laid down in article L. 2141-10.

 

This access may not be subject to any difference in treatment, in particular with regard to the marital status or sexual orientation of the applicants.”[10]

 

A hierarchical model of female empowerment

 

         Under this current legislative framework, it is argued that French bioethics laws create a hierarchical model of female empowerment whereby some are more empowered than others.  In turn, resulting in a top tier, middle tier and bottom tier, as will now be explained.

 

The top tier:

 

          The top tier consists of women who are in a heterosexual relationship where both her and her partner are of child-bearing age but are medically infertile.  These are the only women who can access ART under current French bioethics law.  They are empowered above all others, and have been since 1994.

 

As Théry argues, Article L2141-2 codifies a ‘pseudo-procreative model’[11]  whereby reproductive freedom and empowerment is reliant on conformity to the heterosexual model of procreation.  The legislation and underlying policy therefore seek to remedy medical infertility as opposed to social infertility.  Satisfaction of the legislative criteria demands a traditional family model where the only lacking factor is natural reproductive capability.  By only remedying medical infertility in heteronormative couples, this model ensures the ‘naturalness of human reproduction, or at least the appearance of naturalness’[12],creating a ‘perfect crime’[13]whereby the artificiality of the procreation is concealed: it ‘allows us to imagine the sexual act as the point of origin’[14]even if this sexual act did not occur. Thus, as Iacub argues, ART ‘is a device that is destroyed once it has been consumed, that abolishes itself, which only exists to make all traces of its passage disappear’[15].

 

In turn, French bioethics law codifies a naturalistic conception of the social order believing that empowerment through reproductive freedom should only be afforded to those that conform to the heterosexual model.  This limited empowerment is ironic given the freedom ART affords to cut across the previously required link between generating, procreating and sexuality.  Instead, French law codifies ART in a model that seeks to keep this link alive as if all three processes had been present in the creation of the child.  As Yvert argues, the result is a ‘re-naturalisation of reproduction and gender difference’[16].

 

The middle tier:

 

            The middle tier consists of single women and lesbian couples who do not have access to ART under the current law but should do under the Bill’s drafting. These women have not been empowered up to this point, and rely on the Bill’s successful codification and implementation.

 

Affording reproductive freedom and empowerment to women of this tier has been a subject of intense debate, as seen in the thousands of people who marched in opposition of the Bill in Paris ahead of the Senate’s first reading.[17]  Indeed, Macron’s own party (La République en Marche) is divided on the issue, and members are allowed to vote on their own conscience as opposed to party line.[18]  The debate doesn’t fall under simple right-left and conservative-progressive distinctions.  Instead it raises much deeper questions about the family model France places as a pillar of the state, filiation (the fact of being the child of a particular parent or parents), and national identity (who is able to bear French children and pass on ‘Frenchness’).[19]

 

The feminist collective ‘Oui Oui Oui’ [‘Yes, Yes, Yes’] draws a link between the original fight for abortion laws to the current fight for enlarged access to ART: their slogan being ‘IVG/PMA, meme combat!’ [‘Abortion/ART, same fight!’].[20]  Both debates raise the issue of female reproductive autonomy and empowerment. In the context of ART, this empowerment flows from the fact that sexual intercourse is not required to procreate, and neither is a social relationship with the genetic father.  Women would be empowered to procreate using even an anonymous donor who has no intention to be involved in the resulting child’s life. This expansion would challenge the conjugal heterosexual norms of reproduction and filiation and contribute to a wider empowerment whereby France’s family model is fundamentally challenged and redefined.

 

However, as campaigners argue, this family model has already been disrupted on the ground and in law.  The current lack of empowerment for lesbian couples sits in stark contrast with the opening of marriage and adoption to same-sex couples in 2012-13, which was a key trigger in other European countries for reform concerning access to ART. Equally, the current lack of empowerment for single women ignores the reality of single parenting which exists in French society already.  Opening ART to single women would merely replicate families where for various reasons there is no male parental figure.  As Agnès Buzyn, French Minister for Health, states: ‘It is about reflecting France as it is today and all French people in their great diversity...Same-sex parents and single parents exist today, that’s a fact, it would be hypocritical not to see them and not to recognise them [in law].’[21]

 

Despite this liberal family model existing on the ground and in law, campaigners against the Bill argue that children should not actively be brought into the world without fathers.  The most vocal, in this respect, are La Manif Pour Tous, a movement that rose to prominence during the 2013 same-sex marriage debate. Members argue that allowing single women and lesbian couples to conceive ‘intentionally and permanently deprives the child of their father’ which would be ‘a terrible injustice’.[22]  This criticism exists even at institutional level, the ethics board of France’s National Academy of Medicine issuing a report warning that ‘the deliberate conception of a child deprived of a father is not without risk for the child’s development’.[23]  This was criticised by several government ministers, notably the health minister.[24]  However, some senator’s views remain critical: e.g. Jean-Pierre Leleux, a senator for the right-wing Les Républicains, equated it to ‘the manufacture of fatherless children’, and Alain Richard, a senator from the centrist La République en Marche, said he feared the ‘artificialisation of the creation of life’.[25]

 

The Bill’s final draft and codification remains to be seen.

 

The bottom tier:

 

           The bottom tier consists of women seeking to use a surrogate, surrogacy being formally prohibited under French law since 1991 and with no prospect of reform under the Bill.  This bottom tier is only afforded reproductive freedom or empowerment through adoption.

 

In this respect, France’s hierarchical model is not unique.  The majority of European countries prohibit surrogacy.[26]  Some countries, as is the case for the UK, have legalised altruistic surrogacy only.[27]  Prohibition or restriction in these countries is largely based on debate concerning the surrogate mother’s empowerment or exploitation in the surrogacy process. This debate is too far-reaching to discuss in this article, and it appears there is no immediate intention to legalise or regulate surrogacy in France.  However, it is worth noting that critics of the Bill worried that it would lead to surrogacy reform.[28]  Whether the Bill does actually forecast future movement in this area remains to be seen.

 

In my opinion, whilst the Bill significantly alters and relaxes France’s traditional heteronormative conception of the family, surrogacy reform would still face a great hurdle.  ART under the Bill continues to require the maternal, gestational bond and the gestational mother’s involvement in a child’s life (presuming one or both of the child’s mothers do not leave the child’s life later for whatever reason). To extend the law to include ‘motherless’ children (in the sense of gestational mothers – i.e. children raised without involvement from the gestational mother) seems a big leap for France, given the controversy surrounding ‘fatherless’ children.  This is particularly so when other European countries have not made such an extension, given how long it has taken France to catch up in regard to single women and lesbian couples.  Furthermore, surrogacy could open up France’s family model to single men and gay couples, potentially allowing for the ultimate ‘motherless’ child (i.e. children raised without involvement from the genetic, gestational or any intended mother(s)).

 

Other hierarchies beyond the scope of this article

 

           It should be noted that this article has not discussed male empowerment in the context of ART.  As a result of the prohibition of surrogacy, single men and gay couples are not afforded any reproductive freedom and empowerment through recourse to ART.  Instead, they must adopt.  French adoption laws, and the extent to which they empower, is beyond the scope of this article.  Likewise, the hierarchy of male empowerment created is beyond the scope of this article.

 

Another interesting point is current debate regarding whether ART costs will be covered under France’s national health insurance for single women and lesbian couples.  This has not yet been resolved by theNational Assembly and Senate.  Conservative senator Muriel Jourda, who represents Les Républicains in the Senate, has proposed that ART be covered only for heterosexual couples and when the original medical criteria of L2141-2 are met, i.e. in the case of diagnosed infertility or in order to prevent transmission of a serious illness to the child.  Therefore, single women and lesbian couples would have to pay the full bill for ART treatment.[29]  If codified in this form, the Bill would create a new hierarchy: affording reproductive freedom and empowerment on the basis of financial ability.  It should be noted that this financial hierarchy already exists in regard to the bottom tier: France’s prohibition on surrogacy leading women to frequently turn to other countries, with travel, accommodation, medical and legal costs involved.[30]

 

Conclusion

 

              In conclusion, it is argued that French bioethics law does not satisfactorily empower all women.  The reproductive freedom currently afforded is constituent on conformity to a heterosexual model which in turn re-naturalises the transgressive power of ART.  This limited empowerment only remedies medical infertility, as opposed to social infertility, and creates a hierarchical structure of female reproductive freedom.  Whilst the Bill would reconfigure the hierarchy between the top and middle tier, a hierarchy continues to remain in regard to the empowerment afforded to those who require a surrogate mother (the bottom tier). However, the extent to which this latter prohibition is satisfactory is beyond the scope of this article.

 

               It has also been noted that this hierarchy extends to financial ability and male empowerment.  Discussion of these hierarchies are beyond the scope of this article, but would be very interesting to look into.

 


[1]https://www.lemonde.fr/politique/article/2020/01/23/loi-sur-la-bioethique-le-senat-vote-l-ouverture-de-la-pma-a-toutes-les-femmes_6026896_823448.html;  https://www.reuters.com/article/us-france-ivf/french-senate-approves-bill-allowing-ivf-for-single-women-lesbians-idUSKBN1ZL33Y

[2]https://www.eshre.eu/Press-Room/Press-releases-2020/ART-in-Europe

[3] https://www.service-public.fr/particuliers/vosdroits/F31462

[4]https://www.legifrance.gouv.fr/affichCode.do?idSectionTA=LEGISCTA000006171132&cidTexte=LEGITEXT000006072665&dateTexte=20110709

[5]Yvert, Bioéthique et techniques de reproduction, Encyclopédie Critiquedu Genre, 2016

[6]Cass. ass. plén., 31 mai 1991, no. 90-20.105, which can be read at: https://www.revuegeneraledudroit.eu/blog/decisions/cass-ass-plen-31-mai-1991-n-90-20-105/

[7]https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=C53FF7BCB5F86F79E091A1471ED0F5ED.tplgfr31s_2?cidTexte=LEGITEXT000006070721&idArticle=LEGIARTI000006419302&dateTexte=20200804&categorieLien=id#LEGIARTI000006419302

[8]https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=C53FF7BCB5F86F79E091A1471ED0F5ED.tplgfr31s_2?idArticle=LEGIARTI000006419293&cidTexte=LEGITEXT000006070721&dateTexte=20200804&categorieLien=id&oldAction=

[9] http://www.senat.fr/dossier-legislatif/pjl19-063.html

[10](Author’s own translation) http://www.assemblee-nationale.fr/dyn/15/rapports/csbioeth/l15b3181-compa_texte-comparatif.pdf

[11] (Author’s own translation) Théry, Mariage de même sexe et filiation, Éditions del’EHESS, 2013

[12] (Author’s own translation) Descamps, L’Inflation bioéthique dans la perspective del’ectogenèse, Presses de Sciences Po: “Raisons politiques”, 2007

[13](Author’s own translation) Iacub, Un crime parfait, l’assistance à laprocreation, Le Crime Était Presque Sexuel et Autres Essais de CasuistiqueJuridique, 2009

[14] (Author’s own translation) Ibid.

[15] (Author’s own translation) Ibid.

[16](Author’s own translation) Yvert, op. cit.

[17] https://www.lemonde.fr/societe/article/2020/01/20/le-projet-de-loi-sur-la-bioethique-arrive-au-senat_6026536_3224.html

[18] https://www.theatlantic.com/international/archive/2019/10/france-ivf-about-national-identity/599494/

[19]Ibid.

[20](Author’s own translation)

[21] https://www.theguardian.com/world/2019/sep/24/france-debates-law-lesbians-single-women-ivf

[22] https://edition.cnn.com/2019/09/24/europe/france-fertilization-ivf-debate-intl/index.html

[23] https://www.ft.com/content/6b5d2b5e-de11-11e9-b112-9624ec9edc59

[24] https://www.theguardian.com/world/2019/sep/24/france-debates-law-lesbians-single-women-ivf

[25] https://www.euronews.com/2020/01/30/medically-assisted-reproduction-france-grapples-with-who-should-benefit

[26]https://www.bbc.co.uk/news/world-28679020;  https://www.euronews.com/2018/09/13/where-in-europe-is-surrogacy-legal

[27]Surrogacy Arrangements Act 1985

[28] https://www.euronews.com/2020/01/30/medically-assisted-reproduction-france-grapples-with-who-should-benefit; https://www.reuters.com/article/us-france-ivf/french-senate-approves-bill-allowing-ivf-for-single-women-lesbians-idUSKBN1ZL33Y

[29] https://www.france24.com/en/20200120-france-s-controversial-bioethics-bill-reaches-senate-amid-continuing-outcry

[30] https://apnews.com/48ff2014b3fe4f17b1c41d947cd5a0ec