The Council of State’s decision to authorise the transfer of a late husband’s sperm to Spain for post-mortem insemination has triggered numerous reactions.
As far as Gaultier Bès is concerned, “legislation is putting individual wishes before a child’s interests”. This “twisting of the law” is extremely revealing: “Assuming that this was feasible elsewhere, France has facilitated an approach fraught with consequences, which it would ordinarily have refused”. Legislation is authorising this decision under the pretext that it is “technically feasible”. “Europe wants what the individual wants”: legislation “increasingly forbids judgments that go against personal will (…) as though human dignity would suffer at the slightest setback”. And he believes that “exceptions are becoming increasingly commonplace”…
And Gaultier Bès, without “refuting or under-estimating this woman’s suffering” questions “the meaning behind this new legal acknowledgement of the ‘right to have a child’, regardless of the circumstances surrounding that child’s conception and the impact on its personal development”. Technology will be there to ease our pain, “but what if, in so doing, it has new and even more far-reaching consequences which are nonetheless real”: “A technological feat to counter the pain of bereavement” by “indefinitely pushing back the limits of what is possible and decent”.
Once again, legislation has listened to and stifled “the public voice”. Contrary to the orphan situation, here the law is turning a blind eye to “the accident it was supposed to fix” – it is authorising “the gap, which, under normal circumstances, it is asked to fill”. An orphan conceived by post-mortem insemination “is no longer the victim of a drama but the beneficiary of a transaction”. Thus, “the technique, assisted by the law, transforms a drama into a project and the unborn child into an adjustment variable to ease individual frustration”.
Emmanuel Hirsch also responded to this “attempt to defy death” through post-mortem insemination. Linking “the project of life and reality of death”, this is a “surprising, disturbing and worrying” decision.
He likened this technique to organ donation: in both cases, it is difficult for us to “understand the link or idea of continuity between life and death”: the “strange, potential giving of life through the donation of a transplanted organ is unclear”, as in the case of post-mortem insemination. Nevertheless, there is an essential difference: “An organ does not have an identity but gametes do”. As far as Emmanuel Hirsch is concerned, “caution and restraint are required in cases where our understanding of human dignity and responsibility as well as freedom can be led astray for want of reflection”.
Emmanuel Hirsch also considers another level: “Should the moral fidelity of the wife and her need to build memories lead her to enter medically assisted parenthood all alone, in an attempt to defy death rather than become a survivor, recognising the loss of a loved one and grieving? This would allow her to reconnect with life, not forgetting for one moment everything she experienced and shared with the person who is no longer here”. The request for post-mortem insemination “does not stem from the need to honour the deceased person’s wishes, like a duty that the wife is obliged to fulfil. There is no legal justification for medical intervention”.
Huffington Post (1/06/2016); Le Figaro (1/06/2016)