Should the bioethics law have authorized trans men, born women and biologically capable of carrying a pregnancy, to become a mother?
Do men with a uterus, after their sex change in the civil registry, have access to PMA?
On Tuesday, the Constitutional Council considered a priority question of constitutionality (QPC) on this new subject of complex society which mixes biology, gender and administrative law.
The question was transmitted to the Elders by the Council of State.
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At the origin of this legal battle, the association Giaps (Group of information and action on procreative and sexual questions), which denounces discrimination and an obstacle to the reproductive and family rights of trans people.
The subject had already fueled the review of the bioethics law.
During the parliamentary debates, several amendments to open the PMA to trans people, in particular carried by elected LREM, were rejected.
“It would lead to a man in the civil status becoming a mother, which is complicated”
, had notably opposed the former Minister of Health, Agnès Buzyn.
But for activists, the subject is not closed.
On June 25, access to PMA for trans men was also one of the words of
Tuesday, before the Constitutional Council, Me Magaly Lhotel, lawyer for Giaps, protested against one of the criteria retained in the text – female sex in civil status – to frame access to PMA.
"An attack on the principle of equality before the law
," said the lawyer.
“You could say that only women have the ability to carry a pregnancy.
But it is not the role of the legislator to come and say who is able or not to carry a pregnancy.
This is the role of the medical teams
(…)
There are men in the civil registry who have a uterus and can lead a pregnancy”
, she pleaded.
In 2016, the law made it easier for transgender people to change their marital status by no longer requiring them to go through sterilization.
The choice was then made to
"decorrelate procreation from the concept of civil status"
, points out Me Magaly Lhotel.
"The binarity is necessary for the social and legal order"
This impossibility of access to PMA now places trans men who have not yet changed their marital status faced with
"an insoluble choice"
, because if they change it, they will no longer be able to benefit from PMA, she says.
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The lawyer representing the government, for his part, considered that this question had already been decided during the parliamentary debates.
The difference in treatment between women and trans men is justified by a difference in situation,
"attached not to the biological sex of the person but to his mention in the civil status
", pointed out the latter.
The principle of equality between men and women applies to situations of rights which materialize through qualification for civil status.
This binary qualification is fundamental in French legislation relating to the status of persons
,” he argued.
Subjecting access to PMA to a criterion of childbearing capacity would amount to
"recognizing a new sexual category"
and would be likely to
"call into question the binarity of the sexes, necessary for our social and legal organization"
.
Finally, he argued that the invocation of the principle of equality presupposed the prior existence of a right.
However,
“a child is a person and cannot be the object of a required right”
.
Laurent Fabius, the president of the Constitutional Council, announced that the Elders would make their decision on July 8.
In Spain, after a heated debate, access to medically assisted procreation was extended
“to transsexual people capable of gestation”
last November.