On last 9th March, the National Ethics Advisory Committee (CCNE) published an opinion in which it pronounces in favour of post-mortem1 embryo transfer.
This opinion came to consolidate the vote of MPs who have, on last 15th February, within the framework of the revision of the law of bioethics, adopted, in first reading and against the opinion of the government, a measure authorising post-mortem embryo transfer.
Since 1994, the law stated that, intended to reply to the parental request of a couple, the medically assisted procreation (MAP) was accessible for a couple formed by a “living” man and woman. Its revision in 2004 specified that the death of one of the members of the couple is an “obstacle to the insemination or embryo transfer“.
Ethical dilemma
In the first part of its opinion, the CCNE mentions some of the numerous ethical objections to the post-mortem MAP: deliberate and programmed privation of the father for the child; risk to allocate to the child a role, real or supposed, of substitute of the dead man; interrogation on the free and informed character of the decision of the woman to carry on the parental project, this choice intervening in a period of mourning and thus in a context of moral suffering, physical fatigue, vulnerability, etc.; need of a substantial modification of our legislation (filiation law, inherence law) to satisfy the extremely rare situations, etc.
Then the CCNE cites the “strong ethical reasons so that these demands are accepted“. Among them, the fact that the fate of the embryo depends only on the couple which is at the origin of its conception as the law recognised it, except when the embryo is located outside the woman body; the possibility for a couple to be prolonged in the performance of the project elaborated and started in common; the consideration of “the current reality of an existing embryo and the respect which is due to“; the fact that the child born this way cannot be confined to this particularity, “however painful that may be“.
Favourable opinion
As a conclusion, the CCNE comes out in favour of post-mortem embryo transfer, particularly because refusing to the woman transferring her embryo places it “in a situation all the more painful since she will be obliged to make an impossible choice“: ask the destruction of the embryo, give it to the research or consent to give it to another couple.
The CCNE attaches this authorisation to three conditions: the man will have to consent, during his lifetime, expressly to the transfer after its death of a cryopreserved embryo; a period, minimum and maximum, of reflection after the death shall be established as well as an accompaniment of the woman; the law will have to be modified in order to ensure the paternal filiation of the child.
Post-mortem insemination
Let’s note that it did not seem “appropriate” for the majority of CCNE’s members to come back on the prohibition of the post-mortem use of cryopreserved sperm, particularly due to the “character more difficult to verify of the father’s consent at the time of the procreation and the non presence of an embryo which would come from both members of the couple and would this way concretise the parental project“.
1. Avis N°113 – La demande d’assistance médicale à la procréation après le décès de l’homme faisant partie du couple.