Should surrogate mothers be legalised ? Ten keys to the debate
In anticipation of the revision of the law on bioethics, detractors and supporters of ’gestational surrogacy’ (GS) are all fired-up. This article focuses on why.
Although it has been incubating for a long time, the debate on the legalisation of gestational surrogacy has never been so topical : with the 2004 law on bioethics to be revised this year, supporters and detractors of surrogate mothers have been making their voices heard for the last month.
Carrying someone else’s baby is a practice as old as the world itself. But for the last twenty years or so, the techniques of in-vitro fertilisation and artificial insemination have made possible gestational surrogacy, the act of carrying a child conceived outside of a sexual union, with the ovocytes of another woman.
Illegal in France, this practice is authorised abroad. The Mennesson couple, whose twin girls were carried by a Californian woman in 2000 and who still do not have a civil status in France, are moving their fight from the field of media to the political field.
Their call for the legalisation of gestational surrogacy launched at the end of March has collected 300 signatures, including that of many prominent people (politicians, legal practitioners, psychoanalysts, doctors...).
Opposing them, the ’anti’ group, made up of Catholics, feminists or doctors, is rallied around the philosopher Sylviane Agacinski who has just published a virulent book, Corps en miettes (Body in Bits) (Flammarion).
Who is concerned ?
Couples with fertility problems do not always have recourse to gestational surrogacy. Far from it. It is for those couples among whom the woman has no uterus and for whom it is the only solution (apart from adoption, the difficulties of which are well known) to have a child. At least this is the case in all the countries in which GS is authorised, as illegal practices are developing notably in India where it is possible to ’have a baby made’ for 10,000€.
The surrogate mother is implanted with an embryo from the genitors (the oocytes of the natural mother, or of an anonymous donor if the mother does not have any, which have been fertilised in vitro by the father’s sperm) and only ’lends’ her uterus for the duration of the pregnancy (or rents it out in the worst case scenario).
In France, it is estimated that 30 000 couples resort to medically assisted procreation each year. But only around a hundred reportedly turn to gestational surrogacy. Experts routinely estimate at a thousand the number of children in France born as a result of this technique.
What happens abroad ?
While the majority of countries have not legislated explicitly on this practice, illegal in Germany, Spain, Switzerland, Finland and Italy, more and more are authorising it.
Gestational surrogacy has been explicitly legalised by some states within the US, in Canada, New Zealand, Brazil, South Africa, India, some Australian states, Israel, Ukraine, Argentina, Russia, Georgia...
Closer to home, Holland and Belgium have not outlawed it. England and Greece have legalised gestational surrogacy - to better oversee it.
What does French law say ?
Since 1994, article 16-7 of the civil code has stipulated that « any convention related to procreation or gestation for another is null and void ». The surrogate mother alone is recognised as the biological mother. This is what happened to the Mennesson parents, who have been trying for almost ten years to have the filiation of their children recognised, by case law and by legislation.
What does the judge say ?
The judiciary odyssey of the Mennesson parents reveals the uneasiness within society on this matter. As Sylvie Mennesson says :
Since our return from the Unites States, we have been treated like criminals. Brought to Criminal Court, we won at first instance : in October 2007, our children’s filiation was recognised.
The Public Prosecutor appealed and the Court of Cassation (the highest court in the French judiciary) rejected this appeal in December. We are to go back to the court of appeals for a judicial decision on the issue itself. The ball is now in the court of the legislator.
The judges have evoked ’the importance of the children’s interests’ at times to recognise their filiation, at others the ’disruption of international public order’ which would constitute the quashing of the former. In the final analysis, they have passed the buck and may be caught out by a change in the law.
Why is the debate resurfacing now ?
The laws on bioethics having been rendered null and void by evolution in science, the Senate began working last year on the subject of ’maternity for others’. Michèle André, a Socialist Party Senator and rapporteur on the text says this :
’Most parliamentarians of all political persuasions felt it was necessary to legalise gestational surrogacy so as to control it and avoid any abuse. The doctors and judges we have spoken to are telling the legislator to get working’.
On the basis of this report, Michèle André is putting the finishing touches to her bill and is waiting for an opportune moment to introduce it. ’If we continue to outlaw it, women will continue to travel and I find that very sad. Other European countries have had the courage to consider the question’, says the Senator.
What do French people think ?
If the last survey carried out by Ipsos for the magazine Top Santé in january is to be believed, 61% of French people are in favour of the authorisation of surrogate mothers and 33% are opposed to it.
When the question concerns them directly, the women surveyed are less in favour : 55% say they would not be prepared to use a surrogate mother if they could not have children.
And only 17% of women questioned would be prepared to carry a child for someone they do not know (the percentage climbs to 39% when it is for ’someone very close, like a sister or a friend’).
What do the medical experts say ?
The Biomedicine Agency (created in 2004) launched a general consultation on bioethics which will end in June with the presentation of a report to the President. Everyone can have their say on the site created especially for this purpose. As for the National Academy of Medicine, consulted ’as a medical authority’, it emitted a very cautious report, claiming,
« By the nature of the problems it engenders, gestational surrogacy engages first and foremost society and comes under legislative decision ».
What do those who are for legalisation say ?
The Secretary of State for Family, Nadine Morano, stands out in her party and has outraged Christine Boutin and the Catholic fringe of the UMP. Overtly in favour of legalisation for some time, Nadine Morano has declared that she would carry a child for her daughter.
On RTL last week, she insisted on her preference for the term ’surrogate woman’ :
’The woman carries the couple’s embryo for the couple ; she gives nothing of her genetic capital, she only carries. The surrogate mother is the genitor, the surrogate woman is just the gestator.’
Rue 89 interviewed three of the most eminent signatories of the call for the legalisation of gestational surrogacy in France, launched by the association Clara, and has transcribed their arguments.
Elisabeth Roudinesco, a historian and psychoanalyst : « no apocalypse »
’We should never be afraid of changing laws corresponding to changes which have come about in society and science. Gestational surrogacy is the continuation of all medically assisted procreation.
Since the end of the 19th Century, any change related to the family sends society into a panic : when divorce, the equality of rights of parents who had limited paternal access, then abortion were authorised... We are always being told an apocalypse is about to happen, and it never does !
Apocalypse would be a humanity that didn’t want children.’
Serge Hefez, psychiatrist and psychoanalyst : « a gift »
« This act needs to be reconsidered as a gift, the ’gift of engendering’ (the sociologist Irène Théry’s term) that creates solidarity. Giving something of yourself that others do not have is not that common in our individualistic societies !
Remember that in traditional societies a child belongs less to his/her parents, than to the whole society. For a child, the knowledge that two mothers’ love was necessary for his/her birth is rather affirming. »
François Olivennes, obstetrician-gynecologist : « indispensable »
« The legalisation of surrogate women is indispensable to avoid the difficulties and the financial extortion to which women who use this technique are exposed.
It is also important, although this point needs to be tackled separately, to regularise the status of children already conceived this way. In my opinion French society is ready and the majority of French people are in favour of it. »
« Gestational surrogacy offers an approach to modern parental ties, where the desire of people intent on becoming parents and the contribution of the creative forces of a third party are woven together, against a background of parental planning, willingness and educational responsibility. »
What do the opponents say ?
In her book Corps en miettes, Sylvie Agacinski does not mince her words when it comes to denouncing what she sees as a ’barbarity’ which makes women a ’living tool’.
« The rendering available of the female uterus is an indispensable part of the overall plan to manufacture children in laboratories ».
The philosopher, Lionel Jospin’s wife, fears that once it is legalised, this practice will become ’a new job which one can work at part time from home. A godsend for unemployed women, in sum.’
She fears a « vicious circle », engendered by legalisation :
« On the one hand, the possibility of having babies ’differently’ makes sterility more intolerable than ever and sends through the roof the ’demand for children’. On the other, this demand drives doctors to create babies and stimulates a procreative market which is more and more prosperous.
The term gestation conveniently occults labour and delivery, the moment of childbirth in the strictest sense, a crucial event for the child since it is his/her birth, and a moment of danger for the mother.
This use alone of the womb goes against dignity, even if it isn’t a transaction, because it makes the very existence of human beings become a service dependent on another. »
What are the controversial points ?
Gestational surrogacy is likely to be legalised this year, but only for heterosexual couples among whom the woman cannot carry children and provided one of the two parents at least is the genitor.
But many quite sensitive issues still need to be resolved :
Gestation or maternity ? On the face of it, the law will probably outlaw the use of genes belonging to the surrogate mother who would only ’lend her uterus’ for the duration of the pregnancy.
But could the surrogate mother, in spite of everything, claim maternity ? The Senate’s report has made provisions for the gestator to become the legal mother of the child if she so desires, up to three days after the birth. What happens in that case to the ’intended parents’ ?
What remuneration ? The act of carrying a child for another should be compensated, but how would the rate be fixed ? Can the cost of nine months of pregnancy and maternity leave, and the health risks associated with childbirth, be evaluated ’reasonably’ ?
Control ? Who would be qualified to carry a child for someone else and within what framework ? The Senate has provided that the surrogate mother should have a child already and that she would not be authorised to carry a child for another person more than once.
Couples and surrogate mothers could be put into contact through associations accredited by the Biomedicine Agency. Will they have the means to ensure that everything goes smoothly between both parties, and for how long ? The psychological consequences for the surrogate mother and for the child born his way are also unknown.
Translation by Fiona McCann
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