The birth announcement of a surrogate baby girl, whose surrogate mother is her grandmother and her aunt the oocyte donor, has provoked many reactions. This birth was to satisfy the desire of two homosexuals, one of whom is the biological father. Apart from the problematic nature of surrogacy itself, which involves a contract whose subject is the child itself, this “intra-family” surrogate birth raises new problems insofar as the “different protagonists are linked by family or marriage ties”. Is this a case of incest? “Incest is not primarily a biological but rather a social prohibition, which is why it concerns members of the same family, including those who are not biologically related, as in the case of adoption”, explained Aude Mirkovic, a lecturer in private law and spokesperson for Juristes pour l’Enfance (a French legal association for children’s rights). This association believes that “while the incest ban aims to prohibit this entanglement of ties that prevents a child from clearly situating itself within the chain of generations, the conception of this child is here multi-incestuous”. The status of the various family members “is blurred and deprives the child of a clear genealogy placing her within the succession of generations”.
Legalizing surrogacy would not change anything since “even if we tried to regulate surrogacy, each point is in itself an insoluble problem”, explained Mirkovic. This “is quite normal since how can we properly regulate a practice that organizes the provision of a woman, the provision of a child and tinkering with the child’s parentage?”
Unlike adopted children, surrogacy places a deliberately planned child within “an unclear genealogy”, with the child serving as an “adjustment variable”. Also, “the law’s complicity in giving a so-called legal framework to the realization of these selfish desires is a collective resignation: it is a return to the law of the strongest. Appearing civilized under the guise of technology, in vitro and co-fertilization are actually the law of the jungle”.
From the woman’s perspective, Marie-Anne Frison-Roche, professor of law at Sciences Po, believes that people who talk about legalizing “ethical surrogacy” in France would enshrine a kind of “ethical slavery”. “This notion of ‘ethical surrogacy’ cannot exist in French law”, said Frison-Roche, adding that: “It is the very fact that surrogacy is ‘for another person’ that makes it contrary to the law, whatever its conditions”. She then stressed that “this practice would clearly harm women as human beings by regarding them as objects, which is prohibited by French law”. Consensual slavery “does not mean it would be lawful”. Moreover, the example of Great Britain shows that “legalization is not a solution”. Indeed, “more than 30 years after ‘ethical surrogacy’ was adopted, English people who can afford to do so continue to go abroad”.
For further reading:
Altantico, Aude Mirkovic (04/04/2019) – Pourquoi est-ce qu’accoucher de son petit-fils (conçus avec les gamètes de son gendre et de sa fille) pose de sérieux problèmes en tout genre ; Marianne, Louis Hausalter (07/03/2019) – Mères porteuses : “Une GPA ‘éthique’ ne peut pas exister en droit français”