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A national bioethics committee - lessons from France

6 December 2004
By Professor Donna Dickenson
Professor of Global Ethics, University of Birmingham
Appeared in BioNews 286
While some UK commentators debate setting up a national bioethics committee to supplement or rival the Human Fertilisation and Embryology Authority (HFEA), France is doing the reverse: creating a new statutory national biomedicine regulatory authority, in addition to its 20-year old national ethics committee. After January 2005, the CCNE (Comite Consultatif National d'Ethique) will be joined, or perhaps outranked, by a new agency, L'Agence de la Biomedicine, created by legislation passed this summer. Is it indicative that the two countries each feel the need for both kinds of body? What can we in the UK learn from the experience of the French national bioethics committee?

Established in February 1983, and given a formal statutory basis by the 'lois bioethiques' of 1994 and 2004, the CCNE has a membership of 39, plus a chairman appointed by the President. Within the full group, there are three separate methods of appointment. The first 'college' consists of five members also appointed by the President and 'belonging to the principal philosophical and spiritual families'. The second consists of 19 members with particular competence in ethics, appointed by the National Assembly, the Senate, the Conseil d'Etat, the Cour de Cassation, and the ministries of Justice, Health, Research and Communication. The final 15-member 'college' is selected from nominations by the major professional and research bodies and nationally funded research bodies. Although this third group is meant to be particularly expert in research, it is not necessarily limited to scientists and physicians; nor is the second group heavily weighted to philosophers. Jurists carry considerable authority and are well represented in most working groups, with a tendency to conflate ethical and legal thinking by referring to existing law in order to derive ethical principles.

Selected 'outsiders' work with members of the CCNE in working parties, set up to examine particular issues, which the committee itself has had the right to select since 1997. Despite the stereotype of French ethics methods as deductive, the subjects discussed by the committee arise empirically - either from official requests made mostly by institutional sources or through suggestions from individual members of timely topics from the world of practice. The Committee's function is and will remain advisory, but in fact it has sometimes had considerable influence over legislation: it was consulted during the drafting of both the original bioethics laws (1994) and their long-awaited revisions in the summer of 2004. Also, in some cases, such as its opinion on the European bioethics patenting directive of 1998, the CCNE has openly rejected government policy.

Nominally, decisions are meant to be unanimous. However, each of the three presidents to date has laid a different level of stress on attaining unanimity and on presenting a definite opinion to the government, rather than elucidating the pros and cons of the argument so that ministers and legislators can make up their own minds. Thus, for example, the second president, Jean-Pierre Changeux, explicitly rejected the view that the task of the committee was merely to state possible arguments. That agreement was possible in the 29 opinions over which he presided was due, he believes, to concentration on practical regulation rather than foundational debate on concepts such as the status of the embryo.

The politics of non-commercialisation of the body have been played out in the bioethics legislation of 1994 and 2004, as well as in the opinions of the CCNE. The CCNE has consistently taken the strongest possible stand against non-commodification, which it calls 'an intolerable disrespect for the person, a radical violation of our law, a decay which would threaten our entire civilisation'. Whereas there has been tacit agreement to bury the subject of the embryo's status, the committee has continued to blazon its public unity around the concept of non-commodification. Indeed, non-commodification has such a totemic status in CCNE opinions, the bioethics laws and the civil code, that it appears to be the equivalent of le drapeau tricolore: all parties rally behind its symbolic imagery, whatever their disagreement on other issues.

In this symbolic role, the principle of non-commodification also functions to proclaim French exceptionalism - to distinguish France from supposedly less ethical nations, particularly the Anglo-Saxon countries, who, in turn, are rarely differentiated from each other. For example, in its 1990 opinion, 'That the human body should not be used for commercial purposes', the CCNE wrongly but proudly states that 'the view of French law on this problem is clear. It does not accept that the human body should be used for commercial purposes. The body is not an object and cannot be used as such; for instance, blood and organs are not for sale, a position which is rarely encountered elsewhere'. The UK blood donation system, an obvious exception based on free donation, is not mentioned.

The 2004 law sets up a new Biomedicine Agency, with functions similar to (but wider than) those of the UK's Human Fertilisation and Embryology Authority (HFEA). Much of the 2004 legislation seems at first glance to rely on this agency to ensure that no ill is done by the numerous relaxations of principle elsewhere in the statute, such as the greatly expanded list of purposes for which tissue can be taken as a gift from a living person. For example, no tissues or cells can be transferred to any other establishment without authorisation from the new agency, which may help to inhibit totally free global markets in biomaterial.

However, the new French agency will encounter a much more commodified situation at its inception in 2005 than the HFEA did when it began operations fifteen years ago. The second effect of the 2004 laws is to move the position of the body even closer to the object end of the spectrum - despite the ostensibly immovable principle in French jurisprudence that the human subject is an embodied person and not a thing. This is a disappointing outcome. As the sociologist Paul Rabinow says in a backhanded compliment to the CCNE, 'the committee was instrumental in transforming France's official ethical mood from proud affirmation of acts of benevolent giving to a defensive one requiring vigilance against transgressive threats'. Despite its vigilance, however, the threat of commodification has not been avoided altogether in the French context.

We cannot answer the question of whether the UK can learn from the French bioethics committee without taking into account the globalisation and commodification of biological materials. In that threatening and troublesome context, two regulatory heads are probably better than one: both the CCNE and the new Agence for France, and for the UK, both the HFEA and a national bioethics committee - but one with some teeth.

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