Is French law inconsistent in terms of Medically Assisted Procreation (MAP) and surrogacy?

Publié le : 6 April 2018

As far as Jean-René Binet – Professor at the Faculty of Law at the University of Rennes 1 is concerned, the legislator must act in the child’s interests when it comes to assisting procreation. He cites the arguments highlighted in the press and primarily in an article published in  Le Monde on 18 April 2016 in which 130 doctors and reproduction biologists revealed frequently encountered situations which, in their opinion, show “inconsistencies”.


Faced with these arguments, Jean-René Binet wonders: “Should lawmakers simply focus on satisfying the demands (of women and couples) and allow all available techniques without screening them to determine what is and what is not socially desirable? This would be tantamount to refuting the very function of the law, the principal virtue of which is, fairly and squarely, to generally draw the line between lawful and unlawful by indicating what is and what is not permissible”.


He stresses the importance of fuelling the debate from two angles: “the legitimacy of French law to set certain limits in terms of medically assisted procreation on the one hand, and investigate the suggestions of the authors on the other hand”.


Noting that the afore-mentioned article invites us to question the legitimacy of the limits imposed by the law, he points out what is obvious to him: “The law must intervene because the Constitution attributes questions based on individual status to the rule of law”.


Referring to the inconsistencies highlighted by the authors of the said article, he readily agrees with them that infertility is not prevented to sufficient extent and that a widescale national plan should be developed. He emphasises the fact that other measures could definitely improve prevention: “Given the critical shortage of places in crèches/childcare facilities in most towns/cities, many women choose to wait until later to start a family. Numerous problems associated with infertility could undoubtedly be overcome by responding to this need for crèche places, a solution that could be as efficient as authorising the self-preservation of eggs, as advocated by the authors of the article. A more welcoming response to children with disabilities might also help reduce the risk of eugenics that underlies the ban on genetic analysis of embryos”.


 He points out however, that “the authorisation of sperm donation for a single woman would not only fail to eliminate an inconsistency but, above all, would create one”. For a child brought into the world by a living man and woman of child-bearing age, in a stable relationship, through medically assisted procreation, forges credible lineage. “In his eyes as in those of the people around him, there is nothing to suggest that his birth owes anything to technical intervention”.


He concludes by pointing out that the action of the legislator is based on reflection focusing on the interests of the child and not on the demands of adults or the desires of medical procreation professionals.

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