Associate of law faculties, Nicolas Kermabon is a university professor in the history of law.
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The "bioethics law" which should be adopted on June 29 by the National Assembly closes a parliamentary journey started almost two years ago, which has fractured public opinion and the debate between the National Assembly and the Senate. Given the importance of the stakes in bioethics, we can only regret the lack of consensus around the main measures of this text.
This lack of consensus was particularly illustrated on the subject of access to Medically Assisted Reproduction (ART) for couples of women and single women, often referred to as “ART for all”. The text, voted by the National Assembly in first reading on October 15, 2019, had been examined in 2nd reading by the Senate which had in its vote of February 3, 2021 formulated important modifications. With the government bracing itself on its initial draft, the Senate's proposals were ignored and the opposition's amendments to the Assembly rejected one by one. After the failure of the mixed parity committee (CMP) on February 17, 2021 to establish a compromise text, the Senate could only reject the text one last time on June 24 and note the refusal ofconstructive dialogue. Several senators deplored the refusal to take into account the major concerns of the Senate on bioethical issues and the stubbornness of the members of the majority in the Assembly to refuse any dialogue [1].
Such a lack of consensus is explained by the "dialogue of the deaf" which we have witnessed between the government and the majority LaREM on the one hand and the opponents to the text on the other. Most often refusing the debate on the legal and technical field, the partisans of the "PMA for all" are especially placed in the register of the emotion by putting forward the "
freedom to be a parent
" [2] and the concern for equality between female and heterosexual couples [3].
On the form, this rhetoric presented a double advantage: firstly, it allowed the promoters of this reform to conveniently summarize the arguments of the opponents of the "PMA for all" to the problem of the absence of a father in the framework. homoparental families made up of female couples. If the question of the presence of a father figure with a child is important, it is however partly due to factual considerations about which the two parties were able to mutually oppose divergent psycho-pediatric studies.
Above all, however, summing up the debate to this question had the effect of suggesting, in good or bad faith, that opposing “assisted reproduction for all” meant placing families in a hierarchy among themselves, and devaluing the homes in which women only their children educate without a father because of the vagaries of life.
In the legal sense, equality consists in treating identical situations equally and the Constitutional Council has held that heterosexual couples and same-sex couples are not in an identical situation with regard to procreation.
Nicolas kermabon
Secondly, this way of orienting the debate has made it possible to present to public opinion motivations which have often been misled when they turn out to be of little legal relevance. The majority LaREM, for example, has never ceased to point out that the extension of the GPA was only a measure of equality for the benefit of couples of women victims of discrimination. The bioethical laws of 1994 and 2011 which reserved ART for heterosexual couples suffering from infertility were not, however, discriminatory: in the legal sense, equality consists in treating identical situations equally and the Constitutional Council considered that heterosexual couples and same-sex couples are not in the same situation with regard to procreation [4].
The philosopher Sylviane Agacinski underlined the rhetorical trick of the militants for the “PMA for all” consisting in claiming that it was only a question of extending the “rights” of heterosexual couples to couples of women: it is to forget that ART was not a “right” for heterosexual couples, but a medical and therapeutic practice to alleviate a fertility disorder that had to be medically determined [5].
Another example, in a column published several months ago, the deputy LaREM Coralie Dubost wrote: “
If I were gay, I would not have the right to be the mother of my child to this day. I could take him to school, (...) but if he hurts himself, I risk not being able to accompany him to the treatment room at the hospital
”[6]. The argument could be heard, but yet seemed totally unaware that there are already in our law techniques allowing a third party to be associated with the exercise of parental authority.
Basically, the argument of the presidential majority has never ceased to dodge the legal problems posed by the question of establishing the filiation of children from the “PMA for all”. These difficulties, raised by several academics specializing in family law, were highlighted by several speakers in the Senate and the National Assembly, in particular the deputies Thibault Bazin, Xavier Breton and Patrick Hetzel. The new "bioethics law" provides for establishing the filiation of children born to couples of women by AMP using an advance declaration of will, then a joint declaration submitted by one of the women to the officer. civil status. While it presents itself as a measure of equality, such a reform risksparadoxically establish a breach of equality to the detriment of future children resulting from these practices.
Does not the absence of a paternal branch constitute an inequality between the children resulting from these procreative techniques and the other children?
Nicolas kermabon
First of all, while the common law of filiation is governed by the principle of plausibility, children born to couples of women by AMP, which will take place systematically with a third donor, will be endowed with a filiation cut off from its branch. paternal. It is not a question here of asking whether or not these children will be harmed by the absence of a father during their life, but to ask whether it is desirable for the law to establish filiations in which no paternity can. be established for the benefit of these children. Does not the absence of a paternal branch constitute an inequality between the children resulting from these procreative techniques and the other children?
One often responds to this criticism that there are already children educated by single women who do not have a father. This argument, frequently used in good faith but by people unfamiliar with the law, is not legally effective: contrary to what one might think, children whose parentage is only established with regard to a single woman, do indeed have a paternal branch, which however is vacant. It is for this reason that the paternity of these children can possibly be established later. This is not the case with children who will be born to couples of women by assisted reproduction: their paternal branch is not only vacant, it simply does not exist.
The immediate consequence of the implementation of this new filiatory scheme is the deprivation to the detriment of children born to couples of women by AMP of any action in search of paternity. In principle, the paternity action (Civil Code, art. 327) aims to link a child to his father so that the latter fulfills his obligations towards him. The answer will certainly be that in the current framework, when ART practiced by a heterosexual couple is carried out with a donor, the action in search of paternity is already impossible.
However, these two situations are in no way comparable: in an assisted reproduction carried out by a couple made up of a man and a woman, the lack of action is explained by the fact that the donor has a vocation to step aside. the father, in order to secure the filiation of the child: the latter is linked, depending on the case, either to his mother's husband or to a man who has undertaken to recognize him and who will have to assume his obligations towards him. In fact, this child finds himself in a situation similar to that of any other child born to a couple, and whose possession of status in accordance with the title terminates the action in dispute of paternity within a period of a few years.
Against the principle of plausibility, the child born of a couple of women, born of "two mothers" but without a father, would be deprived of a coherent filiation.
Nicolas kermabon
Children from “PMA for all” will find themselves in a radically different situation: deprived of a paternal branch, they will be at a disadvantage compared to the situation of any other child whose paternity has not been. established and which benefits under common law from an action for paternity.
Finally, it is about a break with the principle of plausibility, which governs the common law of filiation since the Napoleon Code (1804), and with the spirit that has animated the AMP regime since the bioethical laws of 1994. and 2011. Contrary to what we sometimes hear, plausibility does not imply that filiation always conforms to biological truth. In reality, the spirit of the law of filiation strives rather to guarantee children a probable filiation (capable of being true) by covering it with both a maternal and paternal branch. Conversely, against the principle of plausibility, the child born to a couple of women, born to "two mothers" but without a father, would be deprived of a coherent filiation.
This is precisely what the Public Health Code wanted to prevent by reserving the AMP for heterosexual couples suffering from infertility, so that the child born using such a practice can benefit from a filiation. likely. One could answer that the principle of likelihood has been put aside since couples of women can by adoption be the "two mothers" of a child. This is to forget that adoption is not the common law of filiation and that plausibility remains the principle: it is for example in the name of this principle that the public prosecutor can oppose in the interest of the child to fraudulent acknowledgments of paternity.
These few elements show that the lack of consensus around the new bioethics law is all the more regrettable as several questions posed by the establishment of the “PMA for all”, with regard to the filiation of children, have not. to date not yet found answers.
[1]
Le Figaro,
June 24, 2021: https://www.lefigaro.fr/flash-actu/projet-de-loi-bioethique-un-dernier-passage-eclair-au-senat-avant-l-adoption- by-the-assembly-20210624
[2] Coralie Dubost, Public Senate, June 11, 2021.
[3] Olivier Véran: “
(...) the French family is growing in the diversity of its models and in the richness of its configurations.
It is an issue of equality and the strength of republican equality is precisely to recognize diversity (...)
”, National Assembly, June 7, 2021.
[4] Constitutional Council, May 17, 2013.
[5]
France culture, Le temps du debate,
September 26, 2019.
[6]
Ouest France
, June 27, 2020.