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Bioethic information and analysis newsletter

Following Letter

N°74 - February 2006

In an opinion published on 26^th January 2006, the National Consultative Bioethics Committee (CCNE), which acted on its own initiative four years ago, divulges its thoughts and recommendations about the issue of anonymity, parentage secret and access to the origins in a society where the biologic parentage and the social or emotional affiliation are more and more dissociated.

Increasing dissociation of biological parentage and social affiliation
Today, 5 to 7% of children, representing 40,000 to 58,000, are born every year in “unusual conditions” (anonymous birth, medically assisted procreation with donors of gametes or donation of embryos, etc). Thus, more and more often the question of the secret relative to the mode of conception, the anonymity of the biological parent(s) and the demand to the access of the origins arises. In addition, the CCNE extends its thoughts to tackle the surrogate motherhood and the access to MAP (medically assisted procreation) or the adoption by homosexual persons.

Secret removaland maintenance of anonymity
The CCNE encourages the secret removal for the mode of conception as soon as possible by the parents themselves and invites them to be aware of the “devastating effects of delaying in revealing this secret”. In the other hand, the removal of anonymity is not recommended for the gamete or embryo donors, (gametes are not parents), but the CCNE is in favour of a child being able to access “non-identifying” information, once he/she is of age. Regarding anonymous birth, the CCNE sees a major progress in the creation of the CNAOP (National Council for Access to Information about Personal Origins) and encourages the extension of its competences. Actually, since the law of 22^nd January 2002, relative to the access of personal origins for adopted persons and children in state care, a child who is of age can have access, if he/she asks for it, to identifying information about his/her origin, after express agreement of his/her biological mother if she left information in sealed envelop.

Homoparentality and surrogate motherhood
Regarding the desire of homosexual couples to have children, “a very current issue but maybe excessive in its significance”, members of the Committee are not opposed to adoption. In the other hand, they are hesitant about the resort to the MAP which is limited by the law to a medical purpose and to the treatment of couple sterility. At least, regarding the surrogate pregnancies or surrogate motherhood, the CCNE still emits great reserves because of the body merchandizing and the confusion risks of motherhood for the child.

Availability of gametes and embryos
In appendix I of opinion No 90, the CCNE proposes an international approach of the regulation aspects. If some countries, like United Kingdom, accept surrogate mothers and gamete and embryo donation, they often encourage the removal of the anonymity in the child’s interest. Everywhere, we can feel anxiety, relative to the consequences for the child, for gamete availability. This anxiety explains that in numerous countries, oocyte donation and embryo implantation are prohibited as in Switzerland, Austria, Italy, Norway, Germany…

Anonymity to prevent infanticides 
Anonymous childbirth, which was for a long time a French exception of a legislation controlling secret motherhood and which does not impose to the biological parents to declare their identity during the recording of the baby, is followed abroad. The obligation to indicate the name of the mother generated an increase of illegal abandonment of babies, indeed infanticides, and today several countries are thinking about childbirth anonymity. Germany, Switzerland, Austria among others, established “Babyklappen”, transparent baby boxes installed in the street. A self heating bed allows collecting the baby and a seal is at mother’s disposal to leave fingerprints enabling her to be identified. As soon as a child is left, an electronic alarm alerts staff which will take care of the baby.

Protecting the baby life, encouraging the right to know one’s origins, encouraging the dissociation of affiliations by encouraging gamete and embryo donations? Is not the defence of baby’s interest the only question?

Enforcement decree for research on embryo: striking silences

The enforcement decree relative to research on embryo and embryonic cells was signed on 6^th February 2006 and published in the French Official Journal of 7^th February. It implements the bioethics law of 4^th August 2004 which authorized research on human embryo. This text – very expected or very feared – is not a surprise, to the following reserves.

Silence about the principle of research prohibition on embryo

Everybody may have forgotten it but the law of 2004, in its article L. 2151-5, first paragraph, stated: "the research on human embryo is prohibited".

It is only at the end of the third paragraph that, "by derogation to the first paragraph (…), researches can be authorised on embryos and embryonic cells when they are susceptible to allow major therapeutic progress and provided that they cannot be followed by an alternative method of comparable effectiveness, in the current state of scientific knowledge".

But, the decree totally passes in silence over the principle of this prohibition which made this research on embryo a subsidiary research. Without reference to the principle of prohibition, the decree just rules the exception (the authorization of the research on embryo) which, for that reason, appears as a rule.

Silence on conditions laid down for research on embryo

The law laid down – we have just seen it – two cumulative conditions: prospects of major therapeutic progress and an impossibility to carry on researches by an alternative method of comparable effectiveness, in the current state of scientific knowledge (for instance the researches on adult stem cells or taken from umbilical cord).

But, from one hand, the decree does not mention anymore the condition which is due to the absence of alternative method of comparable effectiveness. That shows how scientists will not be much encouraged to work on adult stem cells or taken from umbilical cord. On the other hand, the decree, in its article R. 2151-1, gives a tautological and incantatory definition of the condition relative to major therapeutic progress: "are particularly susceptible of enabling major therapeutic progress (…) the researches on embryos and embryonic cells with a therapeutic purpose for the treatment of particularly serious or incurable diseases, as well as the treatment of embryo or foetus affections."

But it is not by repeating that researches for therapeutic purpose are therapeutic that the therapeutic certainty increases, nor by detailing the list of potential beneficiaries that research on embryo will become more therapeutic.

Silence on the prohibited conception of embryos for research

The article L. 2151-2 of the law states that in vitro conception of embryo for research purposes is prohibited.

But, the modalities of the couple consent, or of a surviving member of a couple, for the research on his embryos, as they are detailed by the article R. 2151-4 of the decree, allow the creation of embryos for research.

- First, when the couple has no parental project with his supernumerary embryos, he can consent to the research on this latest. This could be the case for the 120,000 frozen human embryos.

- Then, when in vitro embryos have been diagnosed to be (by preimplantatory diagnosis) carriers of an anomaly, they can be given to the research.

- Finally, in the framework of a medically assisted procreation (MAP), the couple can "consent in writing at the same time that the embryos, which could not be susceptible to be transferred or preserved, are object of a research".

Thus this a priori consent allows very clearly in vitro conception of embryos for research purposes which was prohibited by the law of 2004.

Is the Biomedicine Agency a machine to produce transgression?

The articles R. 2151-2 and R. 2151-15 state that "the chairman of the Biomedicine Agency can authorise a research protocol on the embryo or on the embryonic cells (…)" and "authorises the import and the export of embryonic or foetal tissues and cells for research purposes (…)".

In the eyes of the great discretion of the decree on restrictive conditions stipulated by the law which we have just reminded – and particularly of the subsidiarity of the research on embryo – the freedom of the Biomedicine Agency to authorise or not some projects will apply thus in the field of the research on the embryo. The Agency will be able to authorise some research projects on the embryo rather than other research projects on the embryo.

Also when the chairman explains that “the mission of the Biomedicine Agency is to guarantee that researches on embryo are performed with all ethic guarantees”, it has to be understood: destroying the embryo - with competence and without polluting the environment – is globally the only ethic of the decree.

The evidence is that the Agency, to the terms of the decree, limits itself to appreciating the feasibility of the protocol, the continuity of the organisation and the research team as well as a quantity of material and procedure details which go from diplomas of the researchers to the respect of the environment, going through the registration number allocated to each embryo which will allow guarantying its traceability, as for any other commercialised product.