Gestation pour autrui

In our ever-changing society, a method of medically assisted procreation to conceive children has emerged in recent years in France but also in the rest of the world. Surrogacy is considered a method to help couples with problems of infertility. A woman, called a "surrogate mother", receives an embryo from a fertilization she did not participate in and then carries the pregnancy in exchange for money. It then gives birth to a child who is not genetically his. This technique allows a couple whose wife has uterine diseases and who cannot carry out her pregnancy herself, to have a child. Thus, this method is the subject of an important social debate since the law is against it. Indeed, accepted by many countries, this practice is not allowed in France. The problem is then whether surrogacy should be allowed? Although advances in biomedicine are confronted with fundamental principles, we can see a change in gestation in recent years.

I. Advances in biomedicine confronted with fundamental principles of human rights

A/ A technique contrary to public order

The first French bioethics law of July 29, 1994 defines several founding principles guaranteeing the respect due to the human body. Then, the ban was reaffirmed during the revision of the bioethics laws in 2011. Indeed, inviolable, the body cannot be the object of a patrimonial right, in accordance with article 16-1 of the civil code. As a result, in 1994, the Constitutional Council recalls that the principles of the Civil Code, which include the primacy of the human person, respect for the human being from the beginning of his life, inviolability, integrity and the absence of the patrimonial character of the human body and the integrity of the human species tend to ensure respect for the constitutional principle of safeguarding the dignity of the human person. Moreover, French public order cannot be circumvented using a foreign surrogate mother, even if this practice is allowed in the countries concerned. In the case of procreation or gestation on behalf of others, criminal penalties are incurred for all persons who participated in the pregnancy, directly or indirectly. We can therefore see that surrogacy in France has since the beginning been considered contrary to the fundamental principles. Indeed, the initial problem was the fact that a woman who is so, the mother carries a child that she later gives to another person. There is therefore child transfer and programming of his abandonment by his mother. In addition, it undermines the principles of the unavailability of the human body and the state of the people.

B / Undisputable fundamental principles

The principle and practice of ABM raises several ethical issues. These concerns in particular, the rights of the surrogate mother as regards the risk of merchandising the human body and the undermining of women's dignity, as well as respect for the bond established between the mother and the child during pregnancy. Thus, two main principles have been invoked to prevent the recognition of surrogacy. These principles were identified by the judge before the legislature seized them. The principle of unavailability of the human body, then stemmed directly from a conception of the unavailability of the state of people, both aimed at guaranteeing a certain conception of the family. In addition, a lot of questions arise to know Is it his interest to be separated from the one who wore it for nine months from birth? How to establish the parentage of the child born of GPA? Who are his parents? Indeed, in case of GPA, the terms of the "contract" provide that the mother gives up the child at birth to give it to the agents. However, this separation cannot be done without suffering for the new-born and the surrogate. Indeed, for several decades, all the studies show the fundamental importance of the bonds created between the mother and the child during the pregnancy since the child feels all the emotions of his mother. As a result, it is impossible that he does not feel the fact of being kept away from the one who has worn him for nine months. It is thus very difficult to pretend that this does not affect its development. In addition, we can observe that there is a clear difficulty in establishing parentage in order to construct the identity of the child. According to the Convention on the Rights of the Child, he has "the right to know and be cared for by his parents" (Article 7). Filiation is an essential part of identity. In many countries, children are identified by their father's name. The child born of surrogacy is consequently deprived of a large part of his identity. It is a source of suffering for him that can lead to psychological and psychological

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