The Department for Legal Research and Justice of the French Chancellery has published an investigative report on continually emerging situations claiming “the right to have a child” and the subsequent consequences on parentage both in France and internationally. The study sheds light on the legal contradictions which are looming on the horizon, whilst bringing fundamental children’s rights into question.
In this study carried out from 2015 to 2017, the expression the « right to have a child” matches “requests” for a child in cases which could not be qualified as compensating for medically-confirmed sterility. It does include assisted reproductive technology (ART) for singles, for couples of the same sex, for individuals beyond the natural reproductive age, for surrogacy cases, as well as for individuals who claim a gender change on their civil registry.
« Since the end of the 80’s the issue of a doctrine for the “right to have a child” has been widely debated. As early as 1987, in a publication, one chapter was entitled “From the desire to have a child to the right to have a child” and emphasizes: “accepting the right to have a child is impossible”. Today the situation has changed. Claims are no longer filed for medially assisted reproduction, but rather for getting a child “from” some genes from the “progenitors” (but rarely the entirety). Legislation for bioethics gave incorporated jurisdictional tools into the French legal system, and thereby established guidelines for the new technologies. These were intended to treat medically authenticated cases of sterility, without advocating the “right to have a child”.
For nearly two years, the researchers at the Department for Legal Research and Justice of the Chancellery have been analyzing the various consequences which could result if the “right to a child” is recognized. The current “fait accompli” situations result from the abuses and distortions related to conflicting discrepancies in international legislative guidelines.
In order to circumvent French law, a real business of “reproductive tourism” has been developed. According to the authors, the underlying issue claims the “right for adults to become parents”. This political claim should “be recognized as a right only if it protects against wrongdoing, but does not exacerbate the situation.” However, the legislative changes advocating the “right to have a child” is not inconsequential for the latter, since the new practices could deprive children of rights ensured by the United Nations Convention on the Rights of the Child.
The report reveals some especially shocking monetary details for contractual surrogacy arrangements in the USA and India. The “surrogate mother” only receives 10% of the amount paid by the commissioning mother or the “intended mother”. In the US, the contracts may include clauses which allow “the commissioning individuals to specify the lifestyle of the pregnant woman”, such as “to not apply nail polish, (…) to not participate in sports (…) to not attend funerals”. As mentioned in an article published in Figaro in reference to this report, the contract may even specify guidelines for the young woman’s sexual life. To verify that the clauses of the contract are respected, these women are kept under surveillance. Most often in India, women are “kept in specialized clinics where a personalized diet and a strict schedule must be followed”. The contract’s numerous clauses mainly intend to ensure that no bonding takes place between the natural mother and the child, and that “once born, a pure and simple transfer takes place, without any contact with the surrogate mother”.
This 500-page report is a significant contribution for the legal considerations in discerning the child’s best interests. It highlights the consequences that a judicial interpretation for “a right to have a child” would implicate for the child, for families, and for society.