On 22 October 2014, in Strasbourg, the EPP Working Group on bioethics and human dignity sponsored a meeting on surrogacy.

The meeting, chaired by the Slovak MEP Miroslav Mikolášik, focused on the case of France, thanks to the exposé given par Mr Jean Paillot before MEPs, civil servants and European NGOs. A lawyer practicing in Strasbourg, teacher of Ethics and Bioethics at the Universities of Paris and Strasbourg, and expert at the Council of Europe, Mr Paillot is also the President of Strasbourg’s Catholic Family Associations. 

His presentation made very clear the inadmissibility of surrogacy according to French law, on the basis of the principle of the unavailability of the human person and the non-ownership of the human body.

FAFCE interviewed Jean Paillot after his presentation at the European Parliament, asking him about a European perspective on this practice which is becoming more and more widespread and which represents a threat for human dignity.

FAFCE : Mrs Nadine Morano, MEP, past French Secretary of State for Family, confirmed, after hearing your presentation, something that she had already said in the past: if her daughter, because of a malformation of the uterus, was in need of help to have a child, she would bear him. How can one continue to oppose surrogacy when it is presented as an act of solidarity?

Jean Paillot: Actually, Mrs Morano said something different. She publically said: “Some months ago, I would have said that… But today, with the possibility of uterus transplantation, I have reviewed my position”. Anyway, Mrs Morano seemed, in the corridor, after my presentation, ready to stand by her original position, seeming to accept that surrogacy agreed upon with no exchange of money could be acceptable after all.

In my view, I completely agree with Mrs Morano when she declares that, since uterus transplants are now possible (to be precise, the first baby born after a uterus transplantation was born last September), the case where surrogacy could seem possible for solely non-profit reasons no longer makes sense.

I consider then that the ban of surrogacy must be maintained, in the name of the principle of dignity, even when the contracting parts consider it without any payment. Because the payment is not the only problem that justifies the banning in French law. I add that there is always a sagacity in respecting our principles. A ban by the law, in the name of dignity, can be an occasion for exploring new scientific methods, of finding other solutions, more respectful of the dignity of men and women.

FAFCE : Mrs Therese Comodini Cachia, from Malta, also intervened expressing her own concerns about the challenges that surrogacy poses towards the children born through this practice. How can their rights be preserved, while avoiding an indirect justification of surrogacy?

Jean Paillot:

The only instrument a State can use in order to fight against surrogacy efficiently is to refuse to establishthe parentage of the child in this State. Criminal charges (that exist in France) do not have any effect in foreign countries (and I am not convinced that putting the parents of a child born through surrogacy in prison would be helpful). However, a ban without a sanction is senseless.

In addition, it is important to notice that refusing to establish the parentage link of a child born through surrogacy in one country does not prevent the establishment of this link in the country where the child is born: this is what happens in practice. If the parents have decided to sidestep the French law, and to apply the law of another country, they should question themselves on their own responsibility when they make the choice of coming back to France, precisely when they are in a flagrant violation of a serious provision.

In this perspective, the sentences Menesson and Labassee against France by the European Court of Human Rights leave us perplexed. Because if a parentage relationship must be necessarily established by the father having given his gametes, it can be exactly the same with his spouse, in the hypothesis where she would have also given her gametes. And the question of the lawfulness of the surrogacy practice is evacuated from the debate. This is inadmissible.

FAFCE : We see that the legislations on the issue of surrogacy differ very much from one country to another. Are we facing different conceptions of human dignity?

Jean Paillot: Within each State there are profound discrepancies as to the meaning given to the principle of dignity. In French law, the current conception is an “objective” dignity, in the sense that it is independent from the opinion a subject has of his own dignity. A person affected by dwarfism may feel that dwarf-tossing is not unworthy, but it is in fact, and dwarf-tossing has been banned precisely in the name of the principle of dignity. Some States may therefore consider the principle of dignity differently from us.

But other factors intervene: the importance given to individual freedom compared to the principle of dignity (regardless of whether it is worthy or not, it’s my will which prevails); or the fact that a State considers preferable to give priority to life, without taking into account the ethical questions linked to the technique used.

FAFCE : The European Parliament did a long comparative study on the regime of surrogacy in EU Member States and the French Foreign Affairs Ministry is exploring the possibilities of a formal international prohibition of this practice. On your side, you made two concrete proposals on this subject. Which are, according to you, the conditions for a standardisation of the law in this matter?

Jean Paillot: Two true conditions: the political will and the accessibility of medical techniques of substitution.

If France really intends to give a major input in this field, the options abound: completing with one sentence article 3 of the Charter of Fundamental Rights of the European Union; proposing to sign an additional protocol to the International Convention of the rights of the Child, of which we are going to celebrate the 25th anniversary in a few days (20 November, ndr); or proposing a specific international convention on the prohibition of surrogacy. But the question still remains: what is the real degree of political will that France has on this point?

Moreover, such a condemnation must certainly be accompanied by a strong development of medical means to enable women (in reality, couples) who are pathologically sterile to benefit from advanced techniques to overcome their infertility.