SURROGATE MOTHERHOOD LEGISLATION

Feminism, Humanism and Surrogate Motherhood

The French debatosphere has heated up recently not only over how could the national soccer team play so terribly or what is the President thinking of when he proposes that the new public TV czar be appointed by...the President (see "Behind the Glitz and the Gaffes" in this section), but also over a bill being debated in the Senate to legalize certain instances of surrogate motherhood. Hearings included expert testimony by two philosophers, Elizabeth Badinter and Sylviane Agacinski, both of whom have written extensively on feminism and gender. All forms of what is called "gestation for another" (GPA) are currently banned in France, and any children born by this means in other countries have no civil status in France. (In rapt attendance at the recent hearings were parents of such children, from whom legalization would remove a sizable burden.)

The proposed text, which is still a long way from law, includes a number of limits: GPA would only be a legal recourse for women who have no uterus or suffer from other severe forms of infertility; there must be a married or legally identified, heterosexual couple behind the request; a minimum of one of the parents must be implicated biologically in the foetus; and the couple must have primary residence in France (to avoid "procreational tourism"). As for the gestatrice, she must already have given birth and would be limited to two surrogacies, and she may be the beneficiary’s sister but not her mother. Of particular importance in the eyes of many are the stipulations designed to keep the activity completely out of the marketplace: no remuneration except a State-regulated indemnity of a fixed amount, and no intermediaries. A certificate issued by a State biomedical commission would be required. Finally the surrogate mother would have three days after birth to retract and keep the child. Negative examples during the debate came largely from US experience, positive ones from Canadian or British policy results.
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Elizabeth Badinter is one of France’s most respected voices, on a range of issues from human rights to the role of women in society, and she takes a clear stand in favor of legalization based on arguments which counter what she sees as the two principal objections. First, on the question of the attachment of mother and foetus, she states flatly that the so-called maternal instinct does not exist, acknowledging that if she believed there was such a thing she would have to be against the practice of surrogacy. "All love is construction; this is one of the achievements of feminism" she says, "which is why I am also at ease with the idea of abortion". As for the dangers of commercialization, Badinter believes that legalization is the best way to combat this, and she calls for a strengthened bioethics watchdog apparatus to ensure that the practice does not degenerate into something tantamount to organ trafficking or slavery. On the positive side, Badinter is for legalization on more than feminist grounds, "it’s a question of humanity, ....it would resolve an untenable situation for some couples". As for extending the practice to homosexual couples, for pragmatic, political reasons she sees the time as not yet ripe, but quickly adds that there is no reason to believe that traditional families are "what’s best" for a child; "traditional families have created lots of neuroses, anguish, and failures".

Sylviane Agacinski is a well-known philosopher much of whose research has focused on male/female relations, and she expresses a very clear opposition to legalization of surrogate procreation as an assault on the sanctity of the human person and body. Even if the market is kept out of the process, she sees the act as instrumentalizing the female body and as turning a baby into an object. "Carrying a child to term is a transformation [of the mother] and not a productive act" where "women are workers in the baby production system". And she expresses consternation at seeing it become "a function". While Agacinski sees the practice — and the debate over legalization — as a dangerous drift of liberalism, she states the principle underlying her position as the idea that "one does not have a body, one is one’s body", which would make surrogacy a form of slavery, or "an unheard of and barbarous form of exploitation". As for the human suffering of would-be parents, Agacinski notes with irony that medically assisted procreation, especially in its high-biotech forms, has created more suffering than it has assuaged, pointing to the number of couples who separate after the trauma of unsuccessful in vitro fertilization (whose success rate is only 20%). Finally, in the desire to have a child is "the desire to transmit", and often "we transmit more, or better, to those other than our own children". One idea at least she holds in common with Elizabeth Badinter.
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Interestingly, the text has widespread support among Senators of the UMP, the governing center-right party, except among representatives of Catholic/traditional advocates of the good old mom-dad-and-(numerous)-kids. As comments by both Agacinski and Badinter bring out, there is a small step from legalization for heterosexual couples to legalization for homosexual couples. Even the Secretary of State for Families, Nadine Morano, while agreeing with Badinter that the public is not yet ready for this step, would like to see artificial insemination legalized for lesbians couples, deploring the fact that French lesbian couples are obliged to go to the Netherlands for insemination in order to have children they will raise as French.

As debate on this set of issues continues, observers of bio-ethical discussions will note a premise similar to the one underlying much of the contentiousness over stem cell research in Europe: the sanctity of the human being means setting careful limits and controls to reproductive practices.

(c) Timothy Carlson


July/August/September 08