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‘International regulation’ of surrogacy or ‘universal abolition’: two approaches, two lines of thinking, two camps

Translated Thursday 18 June 2015, by Sonia Govindankutty

Opinion column by Irène Théry, sociologist and Director of Studies at the EHESS

The WHO places surrogacy under Assisted Reproductive Technology (ART) techniques, a fact worth remembering since ART is in fact the hidden crux in the debate over surrogacy, as was revealed by the two year-long increasingly paroxysmal opposition to both by conservative Catholics of La Manif pour tous. Communicating Rome’s dogmatic opposition to ART as a whole, they hold up surrogacy as an example of the ‘abominations’ to which the ‘natural’ reproduction of heterosexual couples in bed has inevitably been subject, by the use of manipulative medical techniques. All manner of donor conception is condemned, including those that are illegal in France such as sperm, oocyte or embryo donation.

In France, the question of surrogacy has, for the past 45 years, been marked by an attempt to avoid a head-on collision with the Church, as explains Georges David, the founder of CECOS. That is why our bioethics laws have set in stone the Don’t ask, don’t tell policy whereas most countries have long since given it up in the interests of the child. In France even today, donations happen but are hidden; the donor is not acknowledged as if he never even existed and the receiving couple is projected as the natural parents. This pseudo-reproductive practice explains why France doggedly continues to refuse lesbian couples to resort to ART...But things go still further than that. There is in our country, an actual denial regarding donation, especially concerning female donation (oocyte donation or renting a womb).

Thus, the split in biological maternity into two (genetic maternity and gestational maternity) made possible by in-vitro fertilisation is simply and completely concealed: in its attempt to stick to the tradition saying that ‘the mother is the one who has given birth’ no matter what, French law not only considers the gestational mother to be the one and only ‘real mother’, but goes still further: it also considers her to be the genetic mother. So under French law, donation of oocyte by a woman happens as infrequently as sperm donation by a man. It is erased, as if it never happened. Consequently, any claim for ‘genetic’ maternity is disparaged in our country, as if women who can conceive an embryo but are unable to carry it have no right to want to be mothers, to give life...

As to renting a womb, it cannot even be envisaged within the present confines of the French bioethics model. Because which other donation for conception, more than this one, provokes reflection about the meaning and value of this gift, assesses the involvement for the individual making the donation, brings to the forefront the quality of the giver-receiver relationship (a relationship that the French bioethics law prides in ruthlessly preventing), reflects upon risks that are inherent and how to guard against them, clarifies the respective position of each stakeholder, collectively builds up the antecedents of the child, in short, resolutely does what we always refuse to do: give space and meaning in our society to conception with a third party donor?

Therein lies the real point that is unclear, the aspect that is not been collectively reflected upon, from which stem all misunderstandings over surrogacy that rock France, to the increasing amazement of our close neighbors – the Belgians, the English or the Greeks. This lack of reflection explains the vehemence, the apocalyptic images being bandied about, the words intended to hurt used by some while speaking about this issue: woman ‘bag’, child ‘bought’, ‘slavery’...And this, at the cost of learning new things, of making a distinction between completely opposite moral and legal situations and also of any respect for the children of whose cause our ‘anti-surrogacy advocates’ claim to be champions. And with no regard to basic facts. Without really having seen a single real life situation in which further to try to assimilate ethical womb rentals in practice in several democratic countries (and many surrogates whom I met, told me: “Apart from my own family, no one else has valued me so much in my life.”) and the exploitative surrogacy organised by mafias in some countries with no regard to women and their fundamental rights.

It is precisely as if we say that ethical international adoption permissible under our law is the same as the worst form of child trafficking given that there are rich and poor in this world, demand and supply and consequently, ‘the baby market’...But we do not seem to understand the parallel, that for some people wanting to carry another’s child is something impossible, inconceivable to the point of refusing to recognize that in ethical surrogacy, the surrogate never carries her own embryo and so never gives up her own child, and that even when concrete examples of such conception are easily available all around us (thanks to testimony as well as the work of documentary makers and researchers), and it is perfectly possible to be aware.

Things are really bad concerning marriage for everyone, because those who oppose surrogacy and those who oppose gay parenting often overlap, including ‘anti-gay father feminism’ that is getting more and more virulent. Beyond the militant ranks or the stance of such a personality - Sylviane Agacinski being well known for her fight against both surrogacy and gay parenting -, the extreme demonization of surrogacy has in two years become the way of ‘thinking’ for many of our left-wing and right-wing political figures. In fact, the division on this subject seems more generational than political, given that it is many of those over 60 who seem to look upon it as a sort of ‘end of the human world’.

The two consequences arising out of this fanatic demonization have been a matter of urgent reflection for the left. A few months back, a group of personalities from the left (the Corp) used all the force of their usual rhetoric – ‘product’, ‘thing’, ‘delivered’, ‘ordered’ etc. – to try and tempt France to refuse to apply the law following the ‘Mennesson’ and ‘Labassée’ judgements of June 26, 2014 handed down by the European Court of Human Rights, which, in the better interests of the child, denounced our country for not allowing to record the direct line of parentage in French civil status records for children born abroad legally out of surrogacy.

By campaigning so that a group of children with French parents do not have parentage recognized in the civil status records and making them, in a way, strangers in their own country, leading figures from the left, inspired by such good intentions, do not seem to have realized that they are renewing an attitude from ancient times: the one which branded bastards on their foreheads, to punish them for sins imputed to their parents.

By the way, what exactly is the error they have committed?

A new initiative has cropped up from the same group, even more worrying than the first: its recent campaign to abolish surrogacy worldwide. La Manif pour tous has preceded them by setting an ambitious goal for the future: ‘universal abolition of surrogacy’. It is to be acknowledged that this is an idea fully in line with Catholic dogma which, as mentioned earlier, calls for universal abolition of ART. It is an idea completely in line with the view that donating for conception is terrible because the ‘real parents’ of a child are biological parents. An idea in sync with their notion that the ‘real mother’ is the one who gives birth. But who would have thought that those from the left would join hands with these hyper reactionary forces and in their turn, issue the same rallying cry? Yet, this is exactly what the Corp group has just done.

It is even more overwhelming to learn that this watchword of universal abolition is no accident: its avowed aim is to fight international regulation on surrogacy, which in other words, is the most important democratic initiative on the subject today, that of the Hague Conference which is trying hard today to put in place for international surrogacy and against worldwide ‘womb trafficking’, the same measures that it had set down over a dozen years ago to regulate ethical international adoption and to combat child trafficking.

Here then is the big debate for tomorrow. At the very least, it has the merit of clarifying things in the progressist camp: else the ‘international regulation’ on surrogacy where democratic countries met in the Hague Conference, or else denouncing the Hague Conference and the call for universal abolition of surrogacy by La Manif pour tous, the international anti-abortion network No maternity traffic and the group Le Corp.

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