The first law on Assisted Reproductive Technology (ART) was passed in France in 1994 as part of the so-called 'bioethics legislation' that followed other European countries' legislation, such as the UK's 1990 Human Fertilisation and Embryology act. France's law which placed much tighter constraints on individuals access to ARTs than the UK.
More European countries followed suit. Germany already possessed the strictest and the most binding legislation in the world regarding ART, with a few recent legal challenges notably on PGD (preimplantation genetic diagnosis). Conversely, Spain, still traumatised by the interference of the dictator Francisco Franco into the private life of citizens, considered ART a matter for the individual, resulting in a relatively non-restrictive 2006 law.
For a long time, Belgium had no legal framework for ART excepting a 2003 law relating to research on in-vitro embryos. Thus, apart from some recommendations relating to the age either of gamete donors, or of the recipient woman, and the prohibition of certain eugenic or commercial practices, there was no other limit or condition. When legislation was brought in, the goal is was to clarify rather than restrict practices: to set the procedures for a more uniform ART, increasing transparency and protecting the patients by reducing multiple embryo transfers. There is no legal limitation for the use of ART as the centres develop their own access criteria.
Thus the law from our neighbouring countries allow for quick and easy access to any new technology.
The French bioethics law of 1994 was revised in 2004 and 2011, as the intention was always to be able to modify it in the face of evolution of practices, and also of opinion and societal changes. In any case, this law was attractive because of the reflection it induced. However, contrary to common law, anything that is not explicitly authorised in this law is forbidden. Thus, any new technology or societal change which had not been anticipated is therefore impossible to access until the next revision.
Furthermore, although these revisions were planned every five years, they took place instead every seven years, and the publication of the necessary administrative permission (known as decrees of application) was sometimes delayed further. For example, while the law authorising women without children to donate eggs was passed in 2011, the necessary decrees were issued only in 2015.
This situation has led to our patients leaving for nearby countries (such as Spain, Belgium and England) to access what is forbidden to them in France. The French law, which claim to protect against commercial, eugenic or other abuses, does not fulfil their aims and undermines the principles on which the French pride themselves. Equitable access to healthcare instead becomes a two-tier system, where those who have the financial resources to go abroad can avail themselves of the techniques forbidden at home.
So yes, the stakes in this new revision of the law are major.
'What kind of world do we want for tomorrow?' It is a question that opened one of the 'états généraux' (or public discussions) on bioethics on 18 January. Such public meetings will continue to be held over six months and inform the new bioethics law, which will include ART access, expected at the end of the year.
The National Advisory Board of Ethics (CCNE) will collect opinions through their website and organise about 60 debates across France open to the public, and stakeholders such as patient groups, professional and academic societies and religious organisations. They will also consult experts from ethics committees of the main research institutes, and the regional education authorities.
It is not acceptable to integrate new technologies only when they have been validated by our neighbours. We shall not recover from the delay in some techniques which today are forbidden in France, such as [PGS (preimplantation genetic screening)], research on embryos or gene therapy. The expertise acquired, the spirit of innovation and criticism that develops whilst enacting a new practice is not transmissible, so we continue to lag behind.
One may well wonder whether the law should rule on any technique and in detail. For example, to be able to use the technique of freezing by vitrification, it was necessary to wait for the revision of the law in 2011. The efficiency of this technique was demonstrated in numerous scientific articles and it was adopted by our international counterparts. As soon as we were able to use it, our results very clearly improved.
But societal changes are also in question. Currently same-sex couples and single women may not access ART. Other forbidden practices include: surrogacy, egg freezing for non-medical reasons (except non-mothers who may preserve five oocytes for themselves when donating), double donation (where both eggs and sperm come from donors) and posthumous embryo transfer to a woman after her husband's death. Donor-conceived offspring have no right to know their genetic origins.
In June 2017, the CCNE recommended against widening access to egg freezing. The arguments put forward are of medical rather than ethical nature: stressing the dangerousness of the stimulation treatments and oocyte retrieval, as well as the lack of certainty of success. But if the CCNE considers the treatments of ART in this light, it should not only prohibit IVF in general but oocyte donation in particular that uses 'dangerous' treatments on women trying to help other women. This argument is totally inconsistent.
It is fundamental that ART professionals, as well as sociologists and lawyers concerned by these questions – as well as the concerned population – mobilise to bring back the debates to the concept of the individual's autonomy. This should be possible with an open and flexible law, which can still forbid eugenic or commercial practices and set limits to avoid dangerous practices. It should also enable access and appropriate research, but not get lost into the details which need purely a scientific peer review. I am afraid that France is not ready for it: we are still too paternalistic.