What rules for procreation?

Judge Christian Byk
Secretary General: International Association of Law, Ethics and Science(*) Professor at the University of Poitiers, 62, Bd de Port-Royal, 75005 Paris, FRANCE

As far as we consider procreation as the process by which a man and a woman generate offspring, we have seriously to wonder what kind of rules should such a process obey ? The fact that this process has been constantly repeated since the human species appeared on earth does not mean, of course, that procreation - which is therefore viewed as "a natural process" by some - does not follow some rules. Although our scientific knowledge about human procreation is quite new (1), in particular with regard to genetic issues (2), we know that procreation is governed by physiological rules as well as by the laws of genetics.

Anthropology has also made us aware of the existence of the role played by customs and symbols in human societies. Procreation is therefore a cultural phenomenon which has its own social rules (3).

But what about legal rules ? Does procreation need to be considered by law ? And, in case the answer would be positive, to what extent ? (4).

In fact, the answer to this question relies to a great extent on the ambiguous nature of procreation; both a private and social act (5). Historically, the legal approach to procreation largely took into account this aspect in establishing the founding principles of family law and lawyers have always been conscious of the importance of biology, sociology and symbolism in elaborating laws in this field.

Can the emergence of reproductive technologies, which suppose the involvement of physicians and biologists in the intracorporal process of procreation therefore be viewed as something essentially "artificial" opposed to something which should be regarded as basically "natural"? Certainly not. It does not mean, however, that the use of these technologies could not affect our representation of procreation. Consequently the law should ensure that what is made possible by new technologies will not cause fundamental damage to a balanced respect of biology, sociology and symbolism applied to the image of an evolving family.

PROCREATION, LAW AND FOUNDING VALUES.

In western culture - and I knowingly chose this example not by reason of facility but because it emphasises the emergence of the conflict between the interest of the individual and the interest of the community - the founding values of law, particularly in the family area, have largely been inherited from Greek Philosophy, Roman legal tradition and Judeo-Christian beliefs (6).

The concept of filiation and the status of the human body reflects largely this influence although every one could note that social changes which recently occurred affect this permanent relationship between founding values and their legal expression (7).

A - THE CONCEPT OF FILIATION

Although universal, the concept of filiation, because it is constructed both on biological, social and subjective grounds, is deeply rooted in the cultural heritage. Therefore it is particularly relevant for us to be reminded of the influence of Greek mythology (8). It seems that men had organised their social life, and the legal rules implied by it, so as to escape the licentious ways the gods led their own lives. The central role of the father and the prohibition of incest which governed society directly derived from the violence of their gods.
1 - THE INFLUENCE OF MYTHOLOGY

a) Let me remind you how gods behaved in "private family life". Uranos, the original god, was dethroned by his son, Kronos, who ate his own children to protect himself from such a rebellion. However, Zeus could escape and once he became an adult fought against his father and took hold of the Universe.

If Kronos and Zeus disputed the position and authority of their respective fathers, Zeus however succeeded in being considered as the supreme god, almighty, just and good. He is the father of the living and the dead, holding complete sway on life and death. Consequently his regulative function is at the origin of the emergence of law in the family as well as in society.

It is no surprise therefore that the law which appeared during the ancient times largely reflected this mythical role of the father. To be a father was already at that time a social and legal reality much more than a biological one and fatherhood was largely a matter of willingness.

But the role of the father was even more significant because the father is the representative of his family, the legitimate proxy between the family and the authorities, the family and the gods (9). He spoke for his family but he spoke also to his family for the gods and the authorities. The "pater" and the law were confused realities.

b) The emergence of the prohibition of incest followed an identical process.

First the gods. We remember that Zeus married his sister, Hera but the original story regarding this important issue is, of course, the myth of Oedipus.

Laios, his father, was warned by an oracle that, if he had a son, this son would kill him : so when his wife, Jocasta, gave birth to a son, Laios asked a servant to let his son die. However, full of mercy for the baby, the servant disobeyed. Oedipus became adult and on his way to Delphos, he killed Laios because each of them wanted to have priority on the road.

Continuing his way to Thebes, Oedipus met the sphynx, solved the enigma and killed him. Therefore he was proclaimed king by the Thebans and married Jocasta. But when he heard he had killed his father and married his mother, he punctured his eyes (10). Then the humans. With very limited exceptions - the pharaohs for example - incest was prohibited in antiquity and penally sanctioned. To prevent it, the civil legislation of ancient Greece and Rome determined the degree of consanguinity prohibiting marriage. This prohibition became a recurrent trend in family law throughout history. It can be found in canon law as well as in the civil codes and modern family law.

The central role of the father in the social organisation of the family and the prohibition of incest have long been expressed in the roots of family law. Could the social transformation of the family which can be observed in new family law regulations (13) be interpreted as a renunciation of these founding values ?

2 - THE DECLINE OF THE FATHER'S AUTHORITY IN MODERN FAMILY LAW

a) It is obvious that the role of the father as the central authority in the family has been considerably challenged in western societies. Parental responsibilities, and I knowingly use the term responsibility instead of the term authority still used in the French Civil code, are nowadays shared equally between both parents. French Civil code for example has posed (11), as a matter of principle, equal responsibility on the father and the mother in married and unmarried couples, in the case of united or separated families.

Also regarding children, parental authority does not mean any more that this authority is absolute and cannot be challenged.

The State, on behalf of the society, is there to ensure that parental responsibilities are used to satisfy legitimate objectives among which the welfare and the best interests of the child are viewed as preëminent (12). This is the result of several phenomena.

The first one is political and concerns the proclamation, usually recognised from the XVIII century, that all men (it could then be men and women) are born equal.

The second one is economical and cultural : during this last century, women have won access to education and the labour market.

A third aspect is probably anthropological and relates to the family within its traditional framework. Marriage has lost its attraction as a model while children have concentrated the interest of the society. This has permitted the interference of society with family privacy (14).

Can these social changes be interpreted as a negation of the concept of filiation ? And what roles are the new re-productive technologies supposed to have in this process ?

b) Some authors do not hesitate to derive from the fact the father lost his political status that the concept of filiation has been annihilated. There is no longer any son because there is no more any father and vice versa..."Instead of a structured family there is a kind of monogeneration including what we formerly called father, mother, son and daughter and in which all functions can permute"(15).

Reference to family models is therefore largely substituted by worship of television idols... Personality is influenced by the experience acquired within a group of peers and consequently is weak and could be deeply affected emotionally, as drug addiction and violence would indicate (16).

According to this approach, reproductive technologies are just a further step in a process which allows the transgression of generation.

Firstly, they finalise the distinction between sexuality and procreation.

Secondly, they make the child no more than an object of the adult's desire.

Thirdly, they offer all possibilities to transgress natural models: giving access to procreation to widows, single persons, homosexual couples, menopausal women; allowing surrogacy including a grand mother bearing a child for her daughter or the transfer into the uterus of a coloured woman of an embryo generated by a white couple.

Faced with such a risk and the emergence of a "Brave new world", we easily understand why those authors would so much like to ban the use of such technologies (17) for the benefit of society and individuals.

However we believe that this view is too pessimistic. Although we agree that family values have been affected and even challenged, we do not believe that the family as a structure is something questionable. We also think that we are in a transitional period of time which can be characterised by more autonomy of the individuals in the family and an open concept of family (18).

However this concept, which includes filiation, still serves as a reference when establishing the rules governing "extra-natural" families (19).

In adoption, as well as with children born through gamete donation, the law has created a legal fiction which considers as legal parents the adopting parents or the parent who is not biologically related to the child but gave consent to the artificial procreation.

The general trends resulting from legislations passed in this area just confirmed that new reproductive technologies are respecting this legal framework (20). They are only accessible to heterosexual couples - married or not - but children born out of wedlock have been recognised as bearing the same status as legitimate children (21). The couple should be infertile or in some legislations bear the risk of transmitting to the offspring a non curable disease. Although very few legislations would have defined what is infertility, medical ethics would in general regard non accidental menopausal women as not covered by this indication (22).

Surrogacy is also prohibited and post-mortem insemination is rarely admitted (23) as is posthumous marriage.

The major breach to the "natural family" model would be that in some countries single women could have access to reproductive technologies. But many families are nowadays monoparental families and adoption is permitted to single persons in different legislations (25).

However I can hear the vigorous protestations of some of my colleagues at university. The prevailing role of the concept of filiation that you have just described is nothing else than superficial appearance. The reality is different. Bioethical legislations although asserting the pre-eminence of legal principles have in general authorised so many exceptions that new laws are a simple "façade" hiding a total abdication of the fundamental values which are supposed to be protected (26).

The way the so called "status of the human body" is defined by those legislations is a good example of the perverted role played by law when faced with reproductive technologies issues.

B - THE "STATUS OF THE HUMAN BODY"

I often feel as do my colleagues, surprised and even irritated when I read many papers explaining how new the concept of autonomy is (27). We could even be troubled when hearing members of Parliament considering that we face new problems for which there are no legal answers (28).

Lawyers of common or continental law know however that the respect of human integrity, which is encapsulated in all human rights declarations since the 18th century, has served in medical law as a basis to declare that without the free informed consent of the person, it is impossible to heal the body (29).

Consequently it is obvious that physicians who practice reproductive technologies should ask the consent of the recipient women as well as the donors of gametes involved. The interest of specific regulations in the field of reproductive technologies, including the respect of autonomy, is obvious elsewhere. From the scientific view, it is a way to clarify questions of liability. By incorporating in the regulations aspects regarding the medical practice the legislator acknowledges that, when respecting these conditions, reproductive technologies cannot constitute illegal procedures (30).

From the individual point of view, those regulations could also be interpreted as a step in the recognition of advocated new rights: the right to have a child in any circumstances and the right to have a healthy child.

Then a risk exists with respect to the present debate concerning the question "should we legislate and how far is it necessary to legislate ?" Law would then become the hostage of members of the medical profession and activists of individual "rights".

The development of the concept of privacy in the United States is an example of the exacerbation of individual rights which could conflict with each other with no serious limits to control them (31).

In this perspective, the right to autonomy certainly implies the right to dispose freely of one's own body to the point that surrogacy was sometimes considered as legal (32) and facilitating a market for babies was viewed as a normal counterpart of autonomy (33).

But if this risk exists, its occurrence is not a fatality. Between total prohibition and total permissivity it is possible to set up limits which clearly refer to standing legal principles such as the principle "res extra commercium" of the human body. It means that, as far as the human person is living, no distinction could be established between the person and their body. The human body is the human person and obeys the legal status which protects the human person.

The rule of autonomy is of course one of the most important rules applied to the human person but this rule is not absolute and has its own limits (34). The explanation for such limits lies in the fact that an absolute right of autonomy could question the legal status of the person. For example, it is the reason why it would be impossible for someone to accept being a slave.

The human person is also entitled to found a family and it is therefore impossible for her to give up parental responsibilities prior to the birth of a child (35).

These remarks concern the necessity of limits but, on the other hand, the reference to common principles and values does not suppose that such principles could not evolve. Should, for example, gamete donation still be regarded as illegal because third party interference in the procreation of an embryo could be considered as a consented and updated form of adultery ? (35) Or should we accept as an exceptional procedure (reproductive technologies account for 0.3 % of all births) that some people could dispose of significant elements of their body for the benefit of infertile couples ? (36) This is already the case with blood, organs and tissues. The difference with gamete donation is that reproductive technologies are perceived as a way to satisfy individual desire - those of the commissioning parents but also those of some physicians, in their quest for celebrity - more than to accomplish a medical treatment.

But then, what should we think about the surgeon who amputated an arm and would not care about a prosthesis ?

Reproduction is a human function which contributes to the vital integrity of the human being and infertility issues should be medically considered, including using reproductive technologies in an appropriate and reasonable manner.

CONCLUSION

Having argued against the pessimistic point of view of some lawyers, I would like to conclude with a quotation from a philosopher.

"In the discussion around medical ethics there prevails a kind of terror which seizes anyone as though it was a fatality that present use of reproductive technologies should lead to the worst things.

And the question to know if a potential use of such technologies to enhance human liberty is not sufficiently considered" (38).

I hope we have now opened the way to such a consideration.

(*) The International Association of Law, Ethics and Science is an international and multidisciplinary network which aims at developing exchange of information and experiences in the field of ethics of sciences. It publishes a quarterly review, The International Journal of Bioethics (Edit. A. Lacassagne-Eska, 162 Avenue A. Lacassagne, 69003 Lyon, France).

REFERENCES

1.) S. Laurent, Naître au Moyen-Age, Le Léopard d'Or, Paris, (1989).

2.) JL Serre, J. Feingold, Génétique humaine, Inserm, Nathan, Paris, (1993).

3.) D. de Coppet, Parenté (Systèmes de) in Encyclopedia Universalis, F. Zonabend, De la famille, regard ethnologique sur la parenté et le mariage in A. Burguière et Coll. Histoire de la famille, Ed. A. Colin, Paris, (1986), t.I, p.15.

4.) For a diversified answer to this question: R. Ganghofer (Ed) Le droit de la famille en Europe (son évolution de l'antiquité à nos jours), Presses Universitaires de Strasbourg, (1992).

5.) " Dans les sociétés traditionnelles, l'échange matrimonial institue et structure le social. Il y va d'une question de survie collective". H.Levy Buchl, "L'éthologie juridique" in Ethnologie générale, Ed. La Pléïade, Paris, (1968), p.1134.

6.) "L'invention de l'homme comme sujet doué d'une personnalité et d'un destin propre auquel il appartient de collaborer en même temps qu'à la maîtrise de l'univers est une création de l'Occident, fruit imprévisible de la rencontre de la philosophie grecque, du juridisme latin et de la foi chrétienne, elle-même enracinée dans la tradition judaïque", M.Th. Meulders Klein "La production des normes en matière de bioéthique" in CL. Neirinck (dir) "De bioéthique au biodroit" LGDJ, Paris, (1994), p.28.

7.) "Les quatre logiques du changement" in M.Th. Meulders Klein, op. cit Note (6) p.30, see also G Delaisi de Parseral, La part du père, Seuil, Paris, (1981).

8.) L. Depret, "Une origine du droit de la famille en Europe, la mythologie grecque" in R. Ganghofer, Le droit de la famille en Europe, op. cit., note (4), p.55.

9.) B. This, Le père: acte de naissance, ed. du Seuil, Paris, (1980).

10.) J.P. Vernant, Oedipe et ses mythes, Ed. Complexe, Bruxelles, (1988).

11.) D. Huet-Weiller, De la puissance paternelle à la responsabilité parentale in R. Ganghofer (Ed), op.cit, note (4), p.405.

12.) As mentioned in the International Covenant on the rights of children (1989).

13.) F.G. Dreyfus, La Vème République et la famille in R. Ganghofer (Ed) Le droit de la famille en Europe, Op. cit., note (4), p.203.

14.) M.Th. Meulders-Klein, "L'évolution du mariage et le sens de l'histoire" in R. Ganghofer (Ed), op. cit., note (4) p.215.

15.) L. Depret, op. cit., note (8), p.60.

16.) T. Anatrella, Interminables adolescences: 12-30 ans, Ethique et société, Cerf/Cujas, Paris, 4ème éd., (1980).

17.) J.Testart (Ed), Le magasin des enfants, F. Bourin, Paris, (1990).

18.) This evolution can be particularly observed through the role played by the concept of public policy (ordre public) in French international private law applied to family matters: see D. Alexandre, L'intervention de l'ordre public dans le droit de la famille et le droit international privé français in R. Ganghofer (Ed), op.cit, note (4), p.105.

19.) M.Th. Meulders-Klein, Mariage et concubinage ou le sens et contresens de l'histoire in J. Rubellin-Devichi (Ed), Les concubinages dans le monde, Ed. CNRS, Lyon, p.259, (1991).

20.) C. Byk, Les enfants de la procréation et le droit; disparités nationales et harmonisation européenne, colloque "L'Europe et les enfants de la procréatique" Bruxelles 30 Juin -1er Juillet 1994.

21.) A. Tisserand, De l'apparition aux dernières séquelles du statut d'infériorité de l'enfant illégitime in R. Ganghofer (Ed), op. cit, note (4), p.695.

22.) See the proceedings of the FIGO conference on Ethical aspects of human reproduction, Unesco, Paris, 6-8 July 1994.

23.) Commission de réforme du droit du Canada, la procréation médicalement assistée, document de travail n°65, groupe de communication du Canada, Ottawa, p.190 and 197, (1992).

24.) Art. 6-1 of the Spanish Act of 22 nov. 1988.

25.) For example, article 343-1 of the French Civil code states that "The adoption of a child can be requested by any person who is older than 30 years".

26.) G Mémeteau: "Il faut, dit-on, des lois pour permettre l'action sans "risque médico-légal" et non pour créer le droit" in "A l'abordage ! (de l'article 16-3 du Code Civil)", Les Petites Affiches (published in 1994).

27.) G. Hottois, le paradigme bioéthique, de Boeck, Bruxelles, p.190, (1990).

28.) "Ce texte (de loi sur la bioéthique) comble les lacunes de notre législation dues aux progrès de la scienceŠ " M. Méhaignerie, proceedings of the Senate n°66, 20 Jan. 1994, p.92.

29.) M. Sommerville, Le consentement à l'acte médical, document de travail, commission de réforme du droit du Canada, Ottawa, 1980 and G. Memeteau op. cit. note (26) who reminds us that French (Tribunal correctionnel de Lyon 15 Déc. 1859 DP 1859, 3,88) and Belgium (Tribunal civil de Liège, 27 Nov. 1989, DP 1891, 2, 281) case law have preceded the decisions of US courts (Schloendorff v. Society of New York Hospitals dates back "only" to 1914).

30.) A good example of the objective of "bioethical legislations" is given by the French 1988 Act on Biomedical Research on Human Beings. This act aimed at giving under specific conditions, legal status to experimental procedures which have no therapeutic benefits for the person concerned and which were previously regarded as penal offences.

31.) R. Dworkin, Life's Dominion, New York, Alfred A. Knopf, 1993; J. Robertson, Children of choice: Freedom and the new reproductive technologies, Princeton University Press, Princeton, (1994).

32.) New. Rev. Stat. Ann 126 045 (2) 1993; NH Rev. Stat. Ann 168 B: 1-168 B: 9 (1993); V2 Code Ann 20-158 (1993).

33.) E.G. John Robertson op. cit. note (31). For similar opinion in the field of organ transplants, read H. Hansmann, The Economics and Ethics of Markets for human organs, Journal of Health Policy Politics and Law 57-85 (1989).

34.) M. Th. Meulders-Klein, "Le droit de disposer de soi-même, Etendue et limites en droit comparé" in licéité en droit positif et références légales aux valeurs, Bruxelles, Bruylant, p.215, X. Dijon, Le sujet de droit en son corps, Une mise à l'épreuve du droit subjectif, Bruxelles, Larcier, (1982).

35.) In the matter of Baby M, Supreme Court of New Jersey, Feb 3. 1988, A2d 1988 WL 6251 NJ.

36.) In 1948, a report to the Archbishop of Canterbury suggested that artificial insemination should become a criminal offence. In 1960 the Feversham commission appointed by the British Government still condemned AID.

37.) As the Warnock report suggested in 1984

38.) Entretien D. Lecourt - RP Droit, Le Monde 1er Juin 1993.