“We talk about the child, but we must not forget the woman”

That is one of the consequences of the war in Ukraine. Surrogate mothers came to give birth under X in France in the spring of 2022. Six children as a result of a surrogacy (GPA) were to be born on French territory this year. However, this practice has been illegal since a 1994 law.

For Sandra Travers de Faultrier, surrogacy is akin to human trafficking. The doctor who, among other things, took care of the legal part of the collective work Maternity markets (Odile Jacob), deciphers the legal, but also philosophical, principles behind the ban on surrogacy in France.

With the delivery under X of Ukrainian women in France, are we witnessing a new way of circumventing the ban on surrogacy?

It is obvious that this is a circumvention of the law. Ensuring that these children are born in French territory as if they were abandoned by their mother and that the “intended” parents automatically take them in is illegal in France. There are laws that are based on philosophical foundations.

What does French law say?

First of all, there is the law of 29. July 1994 on respect for the human body, and in particular Article 16 (1) thereof, 7, which provides that “any agreement regarding reproduction or pregnancy on behalf of others is void”. More generally, this Article 16 provides that the body is “inaccessible”, that is, it can not be the subject of any property right – whether it is for usus, that is, the use, the abuse (the fact of disposing of it and giving it up) or the fructus (of collecting its fruits). It is clear that the body is out of trade, whether it is free or paid.

Intermediary between an adoptive parent and a surrogate mother is also punishable. The crime is punishable by one year in prison and a fine of € 15,000, according to Articles 227-12 of the Penal Code.

Finally, there is the International Convention on Slave Trade and Slavery, ratified by France, which entered into French law through Act no.oh 2013-711 of 5 August 2013. In its article 225-4-1, the latter defines criminally reprehensible human trafficking as being the act of “to make the victim available to him or her or to a third party (…) to (…) to allow the commission of the victim of pimping, sexual assault or abuse, reduction to slavery, submission to forced labor or services, reduction in bondage, removal of one of his organs ”. I think surrogacy falls into this category. Trafficking in human beings is punishable by seven years’ imprisonment and a fine of € 150,000.

Supporters of surrogacy promote the concept of “ethical surrogacy” …

Those are, in my opinion, two conflicting words! There can be no ethical GPA because this practice can only reduce a person to his function: he becomes a thing. Whether it is free or not makes no difference; it’s actually never free. The pro-surrogate mother regularly talks about compensation, not to mention the middlemen, the companies, but also the armies of lawyers or the doctors who make money.

In an attempt to legalize surrogacy, activists are undergoing mind manipulation. The questions of consent and the conditions for performing these pregnancy surrogates are systematically ignored in silence. We are only talking about the child. However, we must not forget the woman. A surrogate mother is a healthy body that submits to dangerous invasive practices for the benefit of a third party.

Conversely, organ donation is a practice that is strictly regulated by law, among other things so as not to harm the donor irreparably. In the case of surrogacy, we are talking about the use of others as “biological material”. This is how doctors and lawyers talk about the surrogate mother, “the biological matrix”, which has the function of completely overriding the human dimension. The prevailing biological reductionism denies the existential reality of nine months of pregnancy.

Defenders of surrogacy talk about the desire for children. Can lust not do right?

The Universal Declaration of Human Rights sets a limit to one’s own rights: others. I can not deny others, even of my desire. Desire can therefore not make law. It is a very French vision, of which the law is the guardian, and which indicates that the dignity of the human person is more important than all the others.

What is the difference between the French vision and the Anglo-Saxon vision of surrogacy?

The notion of “human person” is not quite the same. The vision of a particular Anglo-Saxon world makes consent the matrix of freedom and autonomy. You mix this with a liberalism that defines freedom as the absence of restrictions, and it gives the fact that the ability to consent defines a human person and that this is enough to establish the validity of a contract (for example, a contract of GPA). On the contrary, in France there are issues that are untouchable. People who are vulnerable for health or financial reasons cannot create a contract that would be detrimental to them.

It is therefore a clash between civilizations, between on the one hand a contractual perspective, with autonomous people enjoying freedom without restrictions, and on the other hand a relational perspective, a source of responsibility guaranteed by the state. It is not a question of the text of the law, it is a philosophical vision: what idea do we have about ourselves? This is important, because from the moment we have become a society without transcendence, without a heteronomous basis, we have only the word of the law not to fall into the realm of things.

When the European Court of Human Rights (ECHR) or the Court of Cassation grant a child status as a result of surrogacy, is it not a way to indirectly legitimize this practice?

The ECHR and the Court of Cassation make these decisions in respect of privacy, which guarantees the right to a civil status. Deprived of marital status, the child has no legal existence. This decision is therefore a practical solution because these authorities deal with implemented facts and they must not question their principles, but it is extremely problematic because the consequence is that we indirectly validate these GPAs, which make the child an object. and reduces woman to a function. For my part, I would be in favor of the idea of ​​not giving any marital status to discourage it. But I am well aware that it is a discourse that cannot pass.

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