With three judgments pronounced on 6th
February 20081, the Court of Cassation has just reminded that
drawing up a record of a lifeless child is not subordinated to the foetus
weight nor to the pregnancy duration.
The facts
Three mothers having prematurely given birth to a child dead in utero
(at 18 and 21 weeks of amenorrhea), had in vain requested to draw up a
record of a lifeless child. Then the parents had applied to the court of
first instance which repudiated their application, like the Court of Appeal
of Nîmes. This refusal was based on the ministerial circular of 30th
November 2001, including the definition of the viability from the World
Health Organisation (WHO) of 1977, according to which a record of a lifeless
child can only be drawn up for still-born children of at least 22 weeks and
weighing over 500 grams. In most cases, foetuses which do not meet these
criteria were then incinerated with operating room waste.
The law: the record of a lifeless child
The Court of Cassation, by reminding the hierarchy of the sources of law,
rescinded these decisions. As the circular has no force of law, then the
article 79-1 of the French civil code, coming from the law of 8th January
1993, is applicable. The 1st paragraph of this article stipulates that "where
a child is dead before his birth was declared to the civil registry, the
officer of civil status shall draw up a record of birth and a record of
death upon exhibition of a medical certificate stating that the child was
born alive and viable", in order to attest the death of a person; the
paragraph 2 foresees that "in the absence of the medical certificate
provided for in the preceding paragraph, the officer of civil status shall
draw up a record of a lifeless child". The text does not deal with the
condition of viability of the child, but also it excludes it expressly as it
concerns the children for whom it is impossible to draw up this medical
certificate. This last paragraph gives an answer to the painful human
problem caused by the death of an unborn child.
Record to the family record book
The record of a lifeless child enables recording the in utero dead
child to the history of the family, and since the order of 26th July 2002,
this declaration is recorded to the family record book. It is advisable to
remind that this record does not determine any filiation; the family name,
which is an attribute of the juridical personality and can only concern a
child born alive and viable, is not indicated.
Burial rites
This act enables the parents to proceed to burial rites (order n°2006-965 of
01/08/06, article R.1112-75 of French public health code). These measures
have been taken after having discovered 300 foetuses in a Parisian hospital
(see Gènéthique No 69) and after the opinion of the National Consultative
Ethics Committee (CCNE) seized at this occasion: “most often the death of
foetus or stillborn child is experienced by the parents as the death of the
child. In any case this death requires health professionals and the
administration department the respect of the body and the need of an
accompaniment".
The abortion questioned?
This jurisprudential decision from the highest French legal court generated
a debate between those who consider that it affects the “right to abortion”
and those who estimate that it does not disturb at all as it only reminds
the law. No one wants to let think that, by the fact of the law depenalizing
abortion, the embryo is not anymore a human being. Nevertheless, the law of
17th January 1975 relating to abortion does not deny the embryo humanity and
ensures in the 1st article “the respect of any human being from the
beginning of his life”. If the embryo carried by a woman was not a human
being, the law Veil would not have been necessary to depenalize abortion.
This law confirms then, if needed, the embryo humanity.
Ideology and juridical fiction
Axel Kahn fears that "the perverse consequences" of this order are
more important than the good they will give to families to who painful is
recognised; "the perverse consequences" being, according to him, an
implicit questioning of abortion. Within contradictions of our society, he
recognises that today our legislation is based on a juridical fiction he
judges necessary. "Our legislation is full of fictions and this one
[the one according to which we exist at birth, editor’s note] has so many
advantages that it is imprudent to question it."3
Denial of pain
According to Maïté Albagly, general secretary of the French Movement for
Family Planning (MFPF), by evoking the pain related to the death of a foetus,
"we make women who abort feel guilty". Nevertheless, we have to
recognize the obvious: an increasing number of women look for a
psychological treatment after an abortion and several psychiatrists, like
the Doctor Stéphane Clerget (author of "Quel âge aurait-il aujourd’hui ?
Le tabou des grossesses interrompues" – see Gènéthique No 97) plead an
accompaniment of antenatal burials4.
1. Orders No 128, 129, 130 of 06/02/08, Court of cassation,
1st civil chamber
2. Opinion No 89, 22/09/05
3. L’Humanité, 09/02/08
4. Le Monde, 28/11/07
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Whereas the debate on the end of life is
relaunched in France, Mgr Jacques Suaudeau, member of the Pontifical Academy
for Life, granted Zenit a long interview about euthanasia.
Definition of euthanasia
Forged in the 18th century by Francis Bacon, the word “euthanasia” has its
origin in the Greek locutions “eu” and “thanatos” which mean an “easy and
smooth death”. Since then, its meaning has developed and, today, we could
define euthanasia as the “act to deliberately kill an incurable ill
patient in order to put an end to his pains; or even to avoid the extension
of hard life; or even to put an end to a life estimated as unworthy for a
human being, and all this for a pity reason”. At the same time, new
definitions appear and disturb the thought. Thus we talk about "active"
euthanasia which would be to directly kill, and "passive" euthanasia. With
“passive” euthanasia, some people think about “letting the patient die”
according to the development of his disease, without giving him useless
treatments. In this precise case, euthanasia called “passive” is not
euthanasia, as non obstinate therapeutics is not euthanasia. In this case,
it is not advisable to use the word “euthanasia”.
Direct (by injection) or indirect (by stopping feeding) euthanasia is always
“active” and is defined by a willing to give death.
Moreover, plenty of euphemic and technical terms used to smooth the term of
euthanasia exist but they mean in fact the same violent reality, we cite
“stopping tube feeding”, "stopping tube feeding/hydration", the “analgesia
at end of life”…
Euthanasia in the history
In pagan antiquity, this practice was generally well perceived because it
was considered as a “worthy death”. Then, with the advent of Christianity,
the idea to face the death with dignity and confidence in the hereafter
became widespread. But then, this concept left place to doubts and
euthanasia was put on a pedestal by Nazism and its "Aktion T4 euthanasia"
operation, which killed around 200,000 victims.
Pro-euthanasia lobby
After this drama, the movement in favour of euthanasia became silent, giving
place to the movement for abortion, the time these Nazi acts are forgotten.
This pro-euthanasia lobby is an international movement, supported by people
like Dr Jack Kevorkian in USA or Philip Nitschke in Australia, and is very
organised. It progressed by steps, introducing new semantics, from "mercy
murder" to "right to die" passing through the right "to die with dignity"
and using a difficult case to generalise (Vincent Humbert, in France).
The death denied
Today euthanasia is particularly admitted in Occident given that our
relationship to death is disturbed: We passed from integrated and managed
death to hidden and dehumanised death. Pain, suffering and death are human
realities our societies try to deny; followed by the temptation to escape
from the last moments of life.
End-of-life patients need to be accompanied. If palliative care accompanies
these patients, the rest of the society should not be uninterested in them:
the assistance to dying patient concerns everybody. The accompaniment is
particularly necessary given that the last moments of life are important to
live completely their death. And this can only be achieved if the physician-patient
relationship based on reciprocal confidence is not undermined by euthanasia
possibility.
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Supported by the Association for the right to die with dignity (ADMD),
Chantal Sébire, a 52-year-old patient with esthesioneuroblastoma
(progressive and incurable tumour of sinus and nasal cavity) asked the
justice, on 12th March, to be able "to benefit from a medically assisted
suicide".
Right to life
According to the requisitions of the prosecuting attorney, the
vice-president of the court of first instance of Dijon dismissed Chantal
Sébire, judging that her demand was opposed to “the code of medical
ethics, which stipulates that the physician does not have the right to
deliberately give death”, and to criminal code and to the European
Convention on Human Right.
Several ministers have reacted to this demand, expressing their willing not
to modify the law relating to the end of life. Prime Minister, F. Fillon,
evoked the “considerable progresses” enabled by the law in force,
adding that "we must have the modesty to recognise that the society can
not answer all these questions”. By nature, a law establishes
constraints and if we go towards a more liberal law on euthanasia, this one
would be, at its turn, compromised by particular cases. For Minister for
justice, R. Dati, a law legalising euthanasia would be opposed to our
legislation. “we founded our law, and the European Convention on Human
Rights, on the right to live.” R. Bachelot, minister of Health, reminded
that the physicians must relieve patients and then their intervention “cannot
have effect in our legislation and our life philosophy to put an end to
patient’s life"; "in any case, death cannot proceed from a project of
which health professionals are associated". “We do not have the right
to interrupt voluntarily life”, concluded Nicolas Sarkozy.
In Le Figaro, Martine Perez denounces the paradox of this demand: “whereas
an increasing number of countries banish capital punishment, in the name of
the absolute respect of life, the demand of elimination of incurable
patients and who suffer runs paradoxically the opposite way”.
While writing, we knew the death of Chantal Sébire. The circumstances of her
death are not yet known.
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