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Bioethics à la Française: the new French bioethics laws

29 March 2010
By Professor Donna Dickenson
Emeritus Professor of Medical Ethics and Humanities, University of London, Honorary Senior Research Fellow, Centre for Ethics in Medicine, University of Bristol and Research Associate, HeLEX (Centre for Health Law and Emerging Technologies), University of Oxford
Appeared in BioNews 551
'Certain countries in Europe, France in particular, are trying to resist the ultra-liberal individualist ideology of the reproductive market. It's too bad that some other countries have maintained a conspiracy of silence on that subject.' (1) Guess who's the villain of this recent statement by the French philosopher Sylvane Agacinski? Here's another hint from a different source, Philippe Gosselin of the ruling UMP party: 'We can't be reduced to things, and the human body is not an object of commerce.' (2) France, he says, needs to stand up for other values than the utilitarianism that dominates biotechnology debate in - yes, that's right - the United Kingdom.

Gosselin's view matters, because together with his fellow UMP deputy Jean Leonetti, he's in charge of the enormous project of revising France's bioethics legislation. Final legislative proposals are expected any day now. Despite France's centralist reputation, dating back to the absolutist monarch Louis XIV, the process has included a very 'bottom-up' revival of a more radical tradition: a series of popular meetings called the 'Estates-General of Bioethics', after the Estates-General which inaugurated the French Revolution. Unlike typically subject-specific consultations in the UK, they covered topics ranging from embryo research and PGD (preimplantation genetic diagnosis) to organ donation, predictive genetic testing and contract motherhood (surrogacy), as well as very un-British philosophical questions about the nature of personhood.

Rousseau famously remarked that the English believe they are free, but they are mistaken: they are only free once every five years, when they vote for their representatives. (Had he foreseen the level of general disenchantment about the forthcoming British elections, le vieux Jean-Jacques might have been even more pessimistic.) In the French tradition of direct democracy, the Estates-General allowed 'ordinary citizens' to question and challenge panels of experts over sessions lasting two weekends, producing reports on their own conclusions. There was a healthy level of disagreement with official policy, but also popular commitment to non-commercialisation, social solidarity and protection of the vulnerable - the 'party line' on bioethics a la francaise.

Considering the British Medical Association's promotion of the French policy of presumed consent to organ donation, it was interesting to see the Strasbourg Estates-General panel condemn their opt-out system for contradicting solidarity, which has to involve voluntary gift to be genuine. (They could have added that the French still have twice as many people on their organ transplant waiting list as the British do, partly because they have comparatively few living donors.) Yet despite their concern that the marketplace was invading such areas as predictive genetic testing by private firms on the internet - which seems to be accepted as a fait accompli in the UK - the panels were also firmly pro-science. That contrasts with the passage of the UK's Human Fertilisation and Embryology Act 2008, which the media reported as pitting the bishops and other 'enemies of science' in one corner of the ring against the 'forces of progress' in the other. (3) One might expect that France, a country with a strong anti-clerical tradition, would have seen an even more polarised debate, but that wasn't the case.

What happens now? There is certainly pressure in France to liberalise what some regard as one of the most restrictive legal systems in Europe, particularly in reproductive tourism. France has sizeable numbers of couples travelling across the Pyrenees or the Channel to take advantage of regulatory systems that do not require proof of a 'parental project' - meaning the couple has to be heterosexual, either married or co-habiting for at least two years. Terra Nova, a foundation with close links to the Socialist party, has called for a more 'progressive' stance, including legalising contract motherhood. However, even this group is opposed to letting 'market exchange' dominate surrogacy.

Leonetti, who believes that protecting the vulnerable trumps autonomy, has insisted that France will not give in to what he calls 'ethical dumping.' 'So what if surrogacy is permitted by our neighbours? If the law is determined by what everybody else does, what's the good of the law? How far are we prepared to manipulate bioethics to respond to our every whim? It's odd that we apply the precautionary principle to the environment and not to human beings.' (4) Judging from his comments, and from the preliminary parliamentary report issued this past January, it seems likely that the French will continue to regulate biotechnology fairly strictly, for example by continuing to ban private genetic testing services like 23andMe - although concessions are expected in such areas as stem cell research. Similarly, Senator Marie-Therese Hermange recently proposed a bill to widen umbilical cord blood collection, but not for one family's private use: rather on the foundational French principles of non-commercialisation and free availability to any child in medical need.

In one episode of Asterix, the doughty hero teaches his British 'cousins' how to make tea, rather than the plain hot water to which they'd faithfully been adding milk and sugar. Certain voices in French bioethics might also like to teach the modern British a thing or two.

1) Quoted in 'GPA: arret de la Cour d'appel de Paris'
Liberation |  18 March 2010
2) Quoted in 'A propos de la revision de la loi de bioethique'
Genethique |  22 October 2009
3) Donna Dickenson, 'Unseen rise of body shopping'
The Sunday Times |  20 April 2008
Quoted in 'Enquete sur les nouvelles techniques de procreation'
Genethique |  15 March 2010
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