In an article published in the weekly L’homme nouveau, Nicolas Mathey, professor of law in the Université Paris-Descartes, gives his point of view as a jurist on the bill authorising research on the human embryo and human embryonic stem cells to be debated by the National Assembly on 28 March.
Nicolas Mathey begins by pointing out that "law is not a simple technique at the disposal of the political power to make its wishes become the rule. It expresses values, part of which are beyond the human will". For the professor of law, "the legislation relating to research on the embryo is the proof of the weakness of contemporary juridical thinking that has not been able to resist the victorious march of scientism of these last decades."
Whereas the principle of the banning of research on the human embryo was accepted "without any doubt" in the first bioethics laws in 1994 because it was "linked to the principle of the dignity of the human person," exceptions were gradually brought up. Thus, by dispensation, "research on the embryo was authorised by the Biomedicine Agency (ABM). Based on a well-established principle of legal interpretation, the exceptions ought to have been interpreted strictly so as to risk undermining the principle. But, [Nicolas Mathey continues], not only has the dispensation not been interpreted strictly by the ABM but the law has simply not been followed. This is what emerged in the ruling of the Administrative Appeal Court of Paris dated 10 May 2012 which, after examining the appeal of the Fondation Jérôme Lejeune, showed the illegal nature of the authorisations delivered by the ABM."
Lastly, according to the bioethics law of 7 July 2011 "the principle of the prohibition of research on the embryo was reaffirmed" and it likewise upheld "the possibility of dispensation under certain conditions."
Today, this provision for the protection of the human embryo "is on the way to being undermined by the bill passed in a first reading by the Senate." The professor of law adds: "technically, the change might appear slight. But theoretically and symbolically it is considerable" because "the principle of prohibition is to be abandoned in favour of making research on the embryo legal under certain conditions. The ABM would be in charge of verifying the compliance with the legal conditions which would also be redefined to be less strict. The only research to be authorised would be research that could not be carried out without using embryos or embryonic stem cells." But according to him, "we should not have the slightest illusion about the zeal of the ABM: no more than in the past will it monitor compliance with the law".
Nicolas Mathey writes: "the fundamental reversal envisaged by the French legislative body is highly significant as it comes parallel to the emergence of a European and international movement less favourable to research on the embryo." On the one hand, by overturning the principle of the prohibition of research on the embryo "the legislative body affirms the little value it puts on the dignity of the embryo in vitro." Thus, "France would be turning its back on the Oviedo Convention which it recently ratified and which stipulates that States must grant appropriate protection to the embryo in vitro. On the other hand, the promotion by the law of such an unpromising line of research leads to neglecting the advances of foreign researchers. Has not the legislation on patents, not very sensitive to ethical issues, largely ruled out the patentability of inventions involving the destruction of human embryos (Court of Justice of the European Union, 18 October 2011, C34-10)?"
Lastly, the professor of law concludes that "nothing justifies the adoption of a law authorising research on the embryo so soon after passing a bioethics law without organising a public debate imposed by the law itself and when everything indicates that the provision promoted by the legislative body is an impasse."