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The question
concerning the legalization of surrogate mothers is one of the crucial
points of the revision of the coming bioethics laws.
Gestational surrogacy
Danielle Moyse, doctor in philosophy and associate researcher at the
Centre d’étude des mouvements sociaux (CNRS-EHESS), wonders about the
incontestable change which occurs in people’s minds, in particular by the
semantics, and that could prefigure a legal legitimation of surrogacy. We do
not talk anymore about “surrogate mother”, term which has a critical
connotation, indicating that the “pregnant” mother, reduced to the role of
matrix, but about “gestational surrogacy” (GS), presented as the height of
the generosity. But about what generosity are we talking about?, the
philosopher wonders. "Indeed what is this altruism which consists in
giving (or in selling) a human being that, in theory, we do not possess?" 1
Positive information report
from the Senate for the surrogate motherhood 2
Within the framework of current thoughts about the revision of the bioethics
law, a Senate working team proposed, in last June, the legalization of the
surrogate mother practice, under some conditions: the commissioning parents
should be a stable and heterosexual couple, which could justify of at least
two years of common life and to be in age of procreating; at least one of
both members of the couple should be the genetic parent of the child; the
surrogate mother should have already had at least one child, could not be
the genetic mother of the child and could not have more than two surrogate
motherhoods; the commissioning couples and the surrogate mothers should
obtain a certification of the Agency of Biomedicine, after having examined
their physical and mental health conditions; the remuneration would be
prohibited and the transfer of embryos would be subordinated to an
authorisation by the judge who would check the certifications, would gather
the written consents and would inform the parties about the consequences of
their commitment in matter of affiliation of the child.
Respect of the "right to
abortion" and of the "remorse" of the surrogate mother
The senators foresee also a termination clause of the contract for the
surrogate mother. The possibility for her to exercise her “right to
abortion”. Reaffirming the principle according which the mother is the woman
who delivers, also the senators plan to enable the surrogate mother to
retract within the three days following the delivery and thus to become the
legal mother of the child (with whom she cannot have any genetic link…).
Principle of no charge?
The remuneration would be prohibited but a "reasonable compensation”
should be planned. Is this illusory? The example of the oocyte donation
enables to be convinced. Faced with the difficulty to have oocytes, the idea
was clearly evoked before the Parliament to pay the donors (AN CR 29 Nov.
2007 p.59, René Frydmann, audit for the OPECST), as it is the case in
Belgium where the donors are paid 1,000 euro per act. How much for the
constraints related to a pregnancy and a delivery?
Constraints and responsibilities
The senators do not mention the heavy constraints which weight on the
pregnant woman: should the contract foresee an abstinence period of
intercourse for the surrogate mother during the implantation period of the
embryo from the commissioning couple? Should this "abstinence clause" be
necessarily void because it is incompatible with the marriage obligations,
without taking into account that it undermines the freedom of woman and the
respect of her private life? 3
What would be the responsibilities of the surrogate mother if she contracts
a disease, have a potentially dangerous behaviour during the pregnancy (alcohol,
smoking, drug…)? And what will the child become if his commissioning parents
die, for instance accidentally, before he was born? So many questions about
which the Sages seem not to have thought, in the interest of the woman (victim
of this new form of exploitation) and of the child divided between his 5
possible parents.
And finally, authorising such practice will
question de facto the founding principles of the unavailability of the human
body and of the non merchandising of the body according which one can sell
or rent all or part of his body. To breach these principles would require to
modify all our legal bases and could open the door to other mercantile
drifts.
Surrogate mothers and adoption
Within the framework of the adoption, a family is offered to a child
deprived of biological family and nobody thinks that this is an enviable
situation for a child; this way, the society intends to better remedy to a
difficult situation. With surrogacy, these difficulties arise, regardless
the child; we give life to an orphan with full knowledge of the facts. Is it
not unfair to program, even before the child conception, the breaking off of
the child-mother relationship which will arise during the pregnancy? 
1 - La Croix, 9th
September 2008
2 - Rapport d’information du Sénat, n°421, 25th June 2008
3 - A propos de la maternité pour autrui, Aude Mirkovic (JCP Droit de
la famille, juin 2008) |
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The 2007 annual
report of the Agency of Biomedicine has just been issued and presents the
conditions of the medically assisted procreation, on the eve of the revision
of the bioethics law, in 2009.
In 2006, the different techniques of medically assisted procreation (MAP)
enabled the birth of 20,042 children (or 2.2% of births in France), of which
1,122 coming from anonymous spermatozoids (6%) and 106 anonymous oocytes
(1%).
More and more frozen embryos
On 31st December 2006, we counted 176,000 frozen embryos, of which 93,116
(52.8%) are subject to a current "parental project", 37,435 (21.2%) are not
anymore subject to it and could possibly been welcomed by another couple or
assigned to the research, and 45,972 (26%) are subject to a disagreement
within the couple or to a non-response regarding their fate. We note a very
high increasing number of frozen embryos: On 31st December; we counted
141,460. One year later, we count 34,512 additional embryos. In 2006, around
sixty embryos were subject to a donation to another couple and 10 children
were born. The stock of embryos declared as “available” for the research
thus seems unlimited.
The MTP increasing by 10%
In 2006, the number of certifications requested and delivered in order to
authorise a medical termination of pregnancy (MTP) increased by more than
10% (6,787 in 2006 vs. 6,093 in 2005); 402 pregnancies have been continued
despite the notification of a disease which could have, according to the law,
enabled a MTP. Almost half of these pregnancies resulted in the birth of a
living child, but the report does not specify how many were unhurt by the
notified disease. |
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State of the
researches
The 2007 report from the Agency of Biomedicine reminds that French teams
have started research on human embryos from 2005, year of the first
authorisations. At the end of the year 2007, 27 teams held an authorisation
to research on embryonic stem cells (ESC).
In total, 88 authorisations have been delivered, of which 24 in 2007, and in
France we are thinking about "the opportunity" to create a national bank of
human embryonic stem cells.
Study and non therapy
The priority is now given to a fundamental cognitive research, an
application in substitution cell therapy being further, in particular by the
fact of an immunologic barrier and of the tumoricity of cells coming from
embryonic stem cells.
It is interesting to note that the supporter of these researches want to
erase the reference to the “therapeutic benefit”, currently being part of
the law and previously necessary to any authorisation for research on human
embryonic stem cells.
Induced pluripotent cells (IPS)
The report states: "in 2006-2007, new data have disrupted the landscape
by describing a third source of stem cells which come from the reprogramming
of adult somatic cells: the induced pluripotent stem cells – iPS, discovered
by Pr Shinya Yamanaka. Despite the short time, these cells appear to have
the same properties as CSEh, which explains the major interest they give
rise in therapeutics, and this especially as, not coming from embryonic
source, they are not subject to the same regulation and do create ethical
problem" 1.
Despite these advances on cord blood and adult stem cells, acclaimed by the
international scientific community, the Agency of Biomedicine carries on
stating: "the adult stem cells are rare, most of them accessible with
difficulty on a prospective way and amplifiable with difficulty. They have a
potential generally limited to the tissue which shelters them, what
restricts their therapeutic use. Data suggesting the existence of
“pluripotent” ASC with a potential quite similar to that of HESC, in
particular in the cord blood, are extremely debated".
The
future of the authorisations?
The scientific publications dedicated to promising results of adult stem
cells multiply. For Jean-Claude Ameisen, chairman of the ethical committee
of Inserm, "Yamanaka’s work proves that it is possible to reprogram
ordinary stem cells and shows that the plasticity of cells is greater that
we thought. With this technique, we cannot say anymore: There is no mean to
do differently (than the research on the embryo, editor’s note)”.
Are the performances of these adult cells, whether they come from cord blood
or called induced (IPS cells), not liable to challenge the authorisations of
research on embryo? Indeed, these are only authorised, on an exceptional
basis, “when they are susceptible to allow major therapeutic advances and
on condition that they cannot be followed by an alternative method of
comparable effectiveness”. The next bioethics law will have to answer
this question.
1 –
On these major scientific advances and more particularly on Yamanaka’s works
on iPS capable of differentiate in several types of human cells, see
Gènéthique No 90 and No 96. |
