Medically assisted procreation: the child’s welfare and rights in the light of these past years

Publié le : 9 May 2018

L’auteur

Grégor Puppinck

Grégor Puppinck, docteur en droit, est Directeur du Centre Européen pour le Droit et la Justice (ECLJ-Strasbourg).

 

Are evolutions in terms of medical assistance regarding procreation in line with the rights and interests of children born from these techniques? In a report called la violation des droits des enfants issus d’AMP (A violation of the rights of children born from medically assisted procreation), the ECLJ takes stock of the current situation, taking into account the welfare and rights of children. Grégor Puppinck, has provided Gènéthique with a summary of the report. 

 

Gènéthique: What pushed you into publishing this document?

Grégor Puppinck: The French regime concerning medically assisted procreation (MAP) makes it possible to make a gamete donation, of which the freeness and anonymity should be “ethically” guaranteed. For a long time, it was considered possible and even best not to tell children of their origins, that it was of no importance, which caused their conception to be surrounded with secrets and lies. Today, there is a whole generation of people born under those conditions who can speak for themselves and who question MAP such as it is currently practiced. Thanks to this hindsight, the negative consequences on children of conceiving with an anonymous third-party donor has been brought to the light.

 

G: Is the donor’s anonymity an unchangeable concept?

GP: No, it is a legal choice more and more questioned. Such is the case in the United Kingdom, Sweden, Finland, Norway, Holland… where donors’ anonymity was lifted according to various modalities. In other countries, change is ongoing. As for international institutions, the jurisprudence of the European Court of Human Rights (ECHR) seems to be heading in that direction. Finally, at the UNO, there is an even stronger consensus in favour of a right to know one’s origins.

Countries such as France started contradicting their own international engagements because they no longer believed in the importance of biological parenting. If the Strasbourg Court remains a little behind on the subject, the United Nations have already clearly established and developed the right for each child to “know his/her parents and be raised by them” when possible (international convention on children’s rights).

 

G: Do you believe France is ready for changes in this field?

GP: An evolution seems inevitable because society cannot remain insensitive to the injustice and distress voluntarily caused to private people, deprived of a part of their filiation, their own identity. This evolution occurs when people born from anonymous MAP start testifying and taking legal action.

The true need of knowing one’s origins proves wrong all those who try to deny the importance of human beings’ biological characteristics and see in them a biological determinism one needs to cut free of. Our identity remains fundamentally rooted in biology: the fact that people look for their biological parents or half-brothers or half-sisters is good proof of that.

The fundamental need to which the right to know one’s “biological origins” answers derives from an essential link that must exist between reality and law; it demonstrates the existence of a “natural law”.

The effective guarantee of this fundamental right could encourage a healthier practice of MAP, by empowering laboratories, gamete donors and “intended parents”, who would take responsibility for their actions. This would help re-humanise this mode of procreation.

In the case of an authorisation of surrogacy or MAP without a father, this right would at least enable children to know who their biological parents are.

 

G: Will lifting anonymity be sufficient?

GP: If we simply lift the anonymity of gamete donations, children born from MAP will always suffer from injustice. Indeed, they will have access to their genitors’ identity, at least when they become of age. But they will not, as other children, have the possibility of obtaining the acknowledgement of their biological filiation. This deliberate exclusion is problematic, especially since French law has chosen since 1972 to encourage filiation congruent with biological truth.

It is visible in countries where anonymity has already been lifted; associations of people born from MAP are now questioning the very principle set by MAP with a third-party donor. It is the case for Joanna Rose (United Kingdom) [1], for example, or Stephanie Raeymaekers (Belgium)[2], whom the ECLJ invited to testify at the UNO in Geneva.

 

G: Where are we on a European Level?

GP : The European Court is probably going to look into the principles regulating anonymous MAP in France after the recent request of a young women who wishes to know of her origins. This is a very important case. Our report shows that the anonymity of donations violates the “right to an identity” of people born from MAP. Indeed, according to the ECLJ, this right includes the “right to know and make known one’s ascendance” [3]. If the judges in Strasbourg are consistent with their past decisions, they will condemn the French regime related to anonymous MAP, obliging France to modify and respect fundamental rights.

Such a decision from the ECLJ would be a first step towards putting children’s rights back in the centre of discussions. We would be left with questions relative to the recognition of filiation and the reparation of the prejudice caused to children, in particular when laboratories declare having lost their archives.

 

G: Isn’t the right to a child, which actually implies the claim of “MAP without a father” and surrogacy, another deviation of the concept of the parental project?

GP: The parental project offers a subjective vision of family. Though it is legitimate and positive in natural procreation, it does not involve any performance obligation: it may or may not work out. When the parental project is associated to technique, it can be turned into a “right to a child” at the expense of the child’s welfare, which becomes a problem.

With the adult’s desire on the one side and the child’s welfare on the other, there must be some sort of balance that needs to be respected. When everything is done in favour of the parental project, at the point of conceiving a child for single people or same-sex couples, the child’s welfare is clearly no longer respected. In this case the problem comes from the fact that the parental project is judged good and legitimate in itself, the only cursor being the intensity of the adult’s desire. What should actually give it its value is not the adult’s desire but indeed the child’s welfare.

 

G: After all, why not offer access to MAP to single women?

GP: The natural desire of transmitting life is quite understandable. Being born from MAP with “donor” does not come as neutral for the child, Whatever the family configuration he/she is raised in.  In our report we wanted to examine how, on various levels, MAP with donor, anonymous MAP and surrogacy, prejudices the child’s welfare. It is quite clear that opening MAP to single people or same-sex couples would be yet another injustice imposed upon the child.

It is not because a child is not born yet that it is ok to impose upon it anything we decide!

 “Responsible” fatherhood and motherhood are often put back on the table to justify birth control, but it should also be taken into account regarding MAP because we have responsibilities towards children and future generations. We are speaking of society responsibilities that go well beyond an individual plan, because it is up to society, depending on the child’s welfare or the common good, to encourage or not these practices.

Currently though, society no longer dares to take on this function. It believes itself to be incompetent and illegitimate to carry such a judgement regarding a person’s desire because this would imply that society knows better than the individual person what is best for him. But then we often forget that what is at stake is not so much an individual desire than the child’s welfare.

 

G: Does the respect of children’s rights not justify putting limitations on the right to a child?

GP: Of course!

But what needs to come first is that people stop considering everything in terms of “rights” but in terms of right and wrong. Is it right that a child should be deprived of his/her natural parents?

Of course, one can bring up positive right and abstract equality to cut off an issue from its anchorage to reality. It is typically the case with a so-called “right to a child without a father” that is a result of a combination of abstract principles. However, it is by taking into account human reality and experience that a moral can be perceived, and only then can legal choices be made.

 

[1]https://eclj.org/family/un/-dr-joanna-rose-gamete-donation-and-human-rights.

[2]https://eclj.org/family/un/stephanie-donor-conceived-speaks-out-against?lng=fr.

[3]ECHR, Pascaud c. France, n° 19535/08, 16th june 2011, § 59.

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