In order to obtain the right from the Law to develop gestational surrogacy legally, the companies invested in the market of human material have deployed a judicial sophistry: the expected answer is slipped in the question and, thus, closes the debate. The offensive is set up in 6 steps that Marie-Anne Frison-Roche, Professor of economic law at the Institute for Political Studies in Paris, deciphers in an article that is to be published [1].
The 1994 laws on bioethics have prohibited any conventions concerning gestational surrogacy, including for free. Faced with this NO given by the legislator, the various companies interested in the “human material market” opposed a seductive technique that consists in putting forward various specific cases and calling upon the media and public opinion, emotionally unstable.
Step 1: Turn the authors of the violation of the civil and penal law into victims, and not into lawbreakers or slavers. As victims, one cannot possibly cause their suffering to increase because of a refusal from the Law, and their wish to be parents cannot be upset. “Those who may wish to deny them such a request would be depicted as ‘heartless’ ”, while the “theme concerning the “hardness of heart” is introduced so that the moral judgment may be turned around” (Menesson ruling, July 2015).
Step 2: Turn the principal victim into an ally. The child, object of the sale and therefore reified, becomes an argument once it is born: “It is in the name of the child that it is declared that the latter has the ‘right’ to have a parent”. The biological link with his father must be recognised and therefore his filiation inscribed in the civil register (2 rulings of the plenary court).
Step 3: Get the mother of the child to disappear. If the link with the father is overvalued, the biological link with the mother, who carried the child via a contract, must disappear; even though, as soon as she signed the contract, she consented in being nothing to the child. However, “how could one not endure the boomerang effect and not recognise that what is true for one person (the biological father) is also true for the other (the biological mother who carried the child)”?
Step 4: Make it appear as though the « parent » is the only actor. In order to erase this mother, absolutely necessary for the birth, the “parent” and the coparenthood must be put forward. By convincing the judges and the public opinion that the parents have a “shared project of having a child”, one forgets the conditions which allowed there to be a child in the first place and, therefore, forgets the biological link with the mother. “It is so beautifully put forward: the child, come into the world by the mere strength of the love of the people who wished for its existence; the biological link thus becomes secondary, even unimportant”. Though the European Court for Human Rights does not agree with this way of thinking, an order from a judge in Nantes from December 2015 demands from the French state, the transcription of the filiation to the wife of the biological mother “for the simple reason that she had the intention of having a child”. The prosecuting authority filed an appeal.
Step 5: Silence the law by depicting it as homophobic. Trying to silence the Law, the sophists denounce it as “homophobic”. Indeed, though the cases brought to justice concern heterosexual couples suffering from medical sterility, the “bearers of the project of having a child” are often homosexual couples burdened with “socially sterility” that “is believed to exercise the same constraints as physical sterility. It is therefore on behalf of the constitutional principal of ‘equality’, the equality between couples, that gestational surrogacy should be considered”. Any other analysis would come as homophobic. “The slope of discussion slipped into a place where the defenders of women and children could do nothing but agree: homophobia and equality between men and women”.
Step 6: The argument of a social drift. In order to avoid any social drifts, the lawfulness of the contracts must be admitted, and the practices must be dealt with within the framework of a legislation, a regulation, and ethic criteria. It is actually a wonderful gift, and the idea of making a child in order to give it away thus becomes acceptable. This step prepares “the industrialisation of human beings”.
With this judicial strategy, a very effective system that for now nothing can seem to stop, the companies, by calling upon the judges, specific cases, and the public opinion, are bit by bit installing the “world slave market”.