Towards the legalization of surrogate mothers?

Publié le 30 Sep, 2008
The question concerning the legalization of surrogate mothers is one of the crucial points of the revision of the coming bioethics laws.
Gestational surrogacy
Danielle Moyse, doctor in philosophy and associate researcher at the Centre d’étude des mouvements sociaux (CNRS-EHESS), wonders about the incontestable change which occurs in people’s minds, in particular by the semantics, and that could prefigure a legal legitimation of surrogacy. We do not talk anymore about “surrogate mother”, term which has a critical connotation, indicating that the “pregnant” mother, reduced to the role of matrix, but about “gestational surrogacy” (GS), presented as the height of the generosity. But about what generosity are we talking about?, the philosopher wonders. “Indeed what is this altruism which consists in giving (or in selling) a human being that, in theory, we do not possess?” 1
Positive information report from the Senate for the surrogate motherhood 2
Within the framework of current thoughts about the revision of the bioethics law, a Senate working team proposed, in last June, the legalization of the surrogate mother practice, under some conditions: the commissioning parents should be a stable and heterosexual couple, which could justify of at least two years of common life and to be in age of procreating; at least one of both members of the couple should be the genetic parent of the child; the surrogate mother should have already had at least one child, could not be the genetic mother of the child and could not have more than two surrogate motherhoods; the commissioning couples and the surrogate mothers should obtain a certification of the Agency of Biomedicine, after having examined their physical and mental health conditions; the remuneration would be prohibited and the transfer of embryos would be subordinated to an authorisation by the judge who would check the certifications, would gather the written consents and would inform the parties about the consequences of their commitment in matter of affiliation of the child.
Respect of the “right to abortion” and of the “remorse” of the surrogate mother
The senators foresee also a termination clause of the contract for the surrogate mother. The possibility for her to exercise her “right to abortion”. Reaffirming the principle according which the mother is the woman who delivers, also the senators plan to enable the surrogate mother to retract within the three days following the delivery and thus to become the legal mother of the child (with whom she cannot have any genetic link…).
Principle of no charge?
The remuneration would be prohibited but a “reasonable compensation” should be planned. Is this illusory? The example of the oocyte donation enables to be convinced. Faced with the difficulty to have oocytes, the idea was clearly evoked before the Parliament to pay the donors (AN CR 29 Nov. 2007 p.59, René Frydmann, audit for the OPECST), as it is the case in Belgium where the donors are paid 1,000 euro per act. How much for the constraints related to a pregnancy and a delivery?
Constraints and responsibilities
The senators do not mention the heavy constraints which weight on the pregnant woman: should the contract foresee an abstinence period of intercourse for the surrogate mother during the implantation period of the embryo from the commissioning couple? Should this “abstinence clause” be necessarily void because it is incompatible with the marriage obligations, without taking into account that it undermines the freedom of woman and the respect of her private life? 3 What would be the responsibilities of the surrogate mother if she contracts a disease, have a potentially dangerous behaviour during the pregnancy (alcohol, smoking, drug…)? And what will the child become if his commissioning parents die, for instance accidentally, before he was born? So many questions about which the Sages seem not to have thought, in the interest of the woman (victim of this new form of exploitation) and of the child divided between his 5 possible parents.
And finally, authorising such practice will question de facto the founding principles of the unavailability of the human body and of the non merchandising of the body according which one can sell or rent all or part of his body. To breach these principles would require to modify all our legal bases and could open the door to other mercantile drifts.
Surrogate mothers and adoption
Within the framework of the adoption, a family is offered to a child deprived of biological family and nobody thinks that this is an enviable situation for a child; this way, the society intends to better remedy to a difficult situation. With surrogacy, these difficulties arise, regardless the child; we give life to an orphan with full knowledge of the facts. Is it not unfair to program, even before the child conception, the breaking off of the child-mother relationship which will arise during the pregnancy?
1 – La Croix, 9th September 2008
2 – Rapport d’information du Sénat, n°421, 25th June 2008
3 – A propos de la maternité pour autrui, Aude Mirkovic (JCP Droit de la famille, juin 2008)

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