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-W. Bradford Wilcox
Associate Professor of Sociology, University of Virginia 

Reproductive Rights in Europe


Ludovine de La Rochère


As expressed at the Cairo conference in 1994, reproductive rights are at the heart of population and development policies. Officially, these are not new rights, but rather clarifications concerning existing human rights: those guaranteeing to everyone full freedom to enjoy their bodies and their reproductive capacities.

Over the years, and with dramatic upheavals in society encompassing the claims of various groups, the scope of reproductive rights has widened. Now this term includes such things as the improvement of pregnancy monitoring, prevention against genital mutilation of women, family planning, access to contraception, and voluntary or medical termination of pregnancy, but also the right to access methods of assisted procreation or gender self-determination.

The advancement of these reproductive rights—which are not, however, recognized as such by the United Nations—has been the subject of many international and European summits. They are even the basis of the United Nations Agenda 2030 for Sustainable Development. The implementation of these rights, which the UN encourages everywhere, cannot, however, look the same in all countries. Aware that certain points are divisive, international texts take care to recall, from the Cairo Conference of 1994, that their application must be made “with full respect for the various religious and ethical values, cultural backgrounds and philosophical convictions” of each country’s people.[1]

Individual countries therefore decide as to the implementation of reproductive rights in their national legislation. In Europe, this freedom leads to a great disparity within the countries of the European Union on these issues.

 

From Country to Country

On abortion (often called IVG, the acronym for “L’Interruption Volontaire de Grossesse,” or Voluntary Interruption of Pregnancy) for example, while France adopted in February 2017 a law extending misdemeanor status to the obstruction of abortion, which was meant to target directly pro-life associations active on social networks and the Internet[2], and while the question of suppressing the conscience clause for doctors comes back regularly[3], abortion is completely prohibited in Malta and its access is severely restricted in Poland.

There are also very large disparities inside the EU with regard to gender self-determination. Five EU countries allow sex change without either hormone treatment or surgery: Hungary, Finland, Sweden, the United Kingdom,[4] and France.[5] At the same time, sterilizing treatment or long psychological follow-up is required in other countries. The differences in procreation issues are also significant. Belgium, the Netherlands, Spain, Denmark, Sweden, Finland, Portugal, Spain, the United Kingdom, and Ireland allow IVF for single women and for female couples, while this remains prohibited in particular in Germany, Poland, Italy and, until very recently, in France.[6]

Hence, the European Union contains several contradictory currents with regard to reproductive rights. Progressives see this lack of unity across Europe and the strong opposition to some of these reproductive developments as serious dangers to be overcome.

Indeed, reproductive rights are supposedly “universal,” and should be guaranteed to all, without any distinction. They are “fundamental human rights, essential for the autonomy of women and equality between all people regardless of gender identity or sexual orientation.”[7] But such an assertion omits the warning highlighted by the Cairo Conference.

 

The Concern of Reproductive Rights Activists

It is to respond to this “danger” that the Economic, Social and Envi​ronmental Council (EESC) gathered its members in Paris on November 12 of 2019, to take stock of reproductive and sexual rights in Europe and to outline “avenues for reflection to guarantee effective access to these rights.”[8] The numerous interventions suggested at this very progressive conference all agree on one point: One of the worrisome new European phenomena concerning reproductive rights is the capacity of opponents to organize themselves into powerful and active associations in the EU. This hotbed of associations is the mother of all dangers for European reproductive rights.

During this summit, progressives especially targeted associations actively fighting abortion, or disseminating information on the harmful consequences that abortion can have on women and the rest of society, or calling for a different sex education than the one currently promoted. Also targeted, of course, were the actions of associations opposed to opening IVF to single women and female couples.

Cited as the spearhead of European opposition to reproductive rights, the French group La Manif Pour Tous, of which I am the president, was a key player in the debates. Active since 2012, our group had just organized in Paris (on October 6, 2019) a large demonstration against the opening of IVF to single women and female couples registered in article 1 of the bioethics law currently debated in the French Parliament. This bill has been demanded for years by LGBT associations, but it is not supported by a consensus in the country, contrary to what liberals want the public to believe. And the media was very surprised that hundreds of thousands of French people were determined enough to march through the streets of Paris and proclaim their opposition.

 

Fallacious Arguments in Favor of Reproductive Rights

There is nothing more astonishing and scandalous to progressives than opposition to the progress of reproductive rights. Why are these protesters marching to refuse to grant a human right to a large swath of the population?

We march, because these rights have become, over the years and through activism, a right to a child. In other words, something naturally impossible is made legal, since a single person or a same-sex couple is unable to found a family. This shift is of course explained by the technology of IVF, which uses the gametes of the other sex from a third donor (or even seller). This process makes it possible to pretend that single women and female couples can have children by themselves.

One of the greatest arguments of promoters of IVF for single women and female couples in France is that this is already widely occurring beyond French borders. If neighboring countries like Belgium and Spain have authorized it, for years and without public dissent, why doesn’t France catch up? It is estimated that 900 to 1,000 French lesbian couples cross the border to take advantage of Belgian clinics annually.[9] In Spain, more than 4,600 women used the services of a particular fertility clinic between 2012 and 2016.[10] This clinic, IVI Fertility, goes so far as to guarantee its clients a baby within 24 months, or reimburse them for their procedures.

Large-scale PR campaigns regularly argue that France must grant this right to its citizens, since it is done in other countries, obscuring totally the fact that opening up IVF to single women and female couples is legally organizing the permanent absence of a father for the unborn child. This does follow some logic: For the proponents of so-called “fatherless IVF,” male and female are no different, and therefore motherhood and fatherhood are indistinguishable as well. Fatherless IVF is based on gender ideology. The only thing that counts for liberals is the love given to the child. If the child is loved, all is good—they argue.

This battle of opinion is waged with poignant testimonies playing on the suffering of people wanting a child and supported with numerous surveys. One such survey, published in April 2019, is supposed to show that 65% of French people are in favor of opening IVF to people who do not suffer from fertility pathology.[11] This survey, commissioned by the Ministry of Health, feeds the position of militant associations which also publish their own polls. Another such example is the poll of the Association of Homoparental Families which, in June 2019, released a public opinion survey revealing that “nearly 2 out of 3 French people are in favor” of fatherless IVF.[12]

In fact, however, some other polls underline that the overwhelming majority of French people want children to have a father and a mother. This is the result of the survey commissioned in June 2019 by La Manif Pour Tous: To the question “do you think that children born by IVF have the right to have a father and a mother?”, 83% of those surveyed responded favorably.[13] The perspective is therefore quite different when one approaches the question from the rights of the child.

Besides this battle of opinion, there is pressure from the reproductive market. French bioethics laws are based on a founding principle: that of the unavailability of the human body. This principle governs organ donation and gamete donation. However, opening IVF to single women and female couples places the CECOS (the French acronym for Centers for Studies and Conservation of Human Eggs and Sperm) in a difficult position. This organization is already experiencing a worrying shortage of donors, resulting in very long waiting times for male and female couples in need of donations. Currently, the CECOS are not able to meet the needs of the 3,000 couples awaiting gametes.[14]

It is impossible to maintain the free donation of gametes and to cope with the increase in needs induced by the opening of IVF. The example of neighboring countries is very enlightening in this regard. This opening would represent nearly 2,000 additional requests, according to estimates by the Ministry of Health.[15] How to respond to the increase in demand? There are two possible solutions: Pay men for providing their sperm, or import missing gametes from countries that pay men. It is this second solution that has been implemented by neighboring countries. The United Kingdom (which also compensates men) imported 40% of its sperm donation in 2016. In Belgium, these imports represent 63% of the sperm used for IVF.[16]

It is therefore absolutely impossible to consider the opening of assisted procreation techniques to single women and female couples while maintaining the principle of the unavailability of the human body. Extending IVF is automatically opening up human commodification, the trade in gametes; it is entering the world procreation market. And the pressure from this market is huge. The Californian firm Grand View Research estimated in 2017 that the sperm banks alone would reach an annual global turnover of 5 billion dollars in 2025.[17] Opening of IVF on French territory would represent a new market for these banks.

The advance of reproductive rights is based on a very deep human desire: that of having a child. That initial, natural desire has since been transformed into a commercial argument serving a world market of titanic dimensions. The entire reproductive industry is estimated to be worth $20 billion.[18] This market makes possible and democratizes reproductive techniques. The pressure it exerts on states to open up new markets by expanding reproductive rights is further reinforced by the ideological pressure of active minorities claiming ever more rights. These two pressures feed on each other, making the advancement of reproductive rights a very powerful groundswell.

One of the most dangerous consequences of the alliance between these two pressures is that it tends to completely suppress the interest of the child, which appears only very rarely in debates. Reproduction is only seen through the lens of adults. The baby is the crowning achievement of a well-thought-out, socially-supported adult project that can be realized with the help of powerful multinational companies. Everyone, in their view, should have the right to procreation, since it is theoretically possible for everyone. In following steps, ever more important “rights” are claimed, as if the constraints of our bodies and biological realities had been totally erased by the power of the technique.

The opening of IVF to single women and female couples is already deemed insufficient by some of the LGBT activist associations. Indeed, beyond women, another category of the population suffers from not being able to satisfy their desire for children: transgender people. This is why the Inter-LGBT (an alliance of dozens of other LGBT groups) denounces in a press release of November 20: “Countries protect transgender people very little, laws discriminate against them, patriarchal and binary society rejects them. We recently saw with bioethics law MPs exclude transgender people from access to IVF, forcing them to choose between transitioning or starting a family. Once again, rights, equality and inclusiveness have been denied to the transgender population.”[19] The groundwork is already being laid.

 

The Strategy to Promote Surrogacy

If the pressure for IVF seems intense, the pressure for legalized surrogacy is even more so. France is indeed one of the few countries to maintain an officially prohibitionist position on this issue: no surrogacy contract can be signed on the territory. French legislation even provides a fine of €7,500 for any mediator between a surrogate mother and a sponsoring couple.[20]

Surrogacy is prohibited in France under, among others, the principle of the unavailability of the human body. This founding principle prevents a woman from being used as an incubator for the benefit of a third party and in exchange for salary or compensation.

Despite this, the pressure for surrogacy is very strong. First, there is the communication campaign: Various French personalities regularly and reassuringly speak publicly about the birth of their children through surrogacy abroad. The comedian and TV host Jarry talks about his twins born through surrogacy[21]; the TV host Alex Goude introduces his own twins in Paris Match[22]; the journalist and director of the BFM news channel Marc-Olivier Fogiel publishes a book describing his own and other French couples’ journies in surrogacy.[23]

The method is the same in each interview: The desire for a child is very strong, these people have had a successful parental project, the technology exists, so why refuse this right on French territory? And thus a technique absolutely contrary to human dignity is gradually presented as a reproductive right to which everyone should be allowed access. Foreign surrogacy agencies take care of finding great stories to tell in the French press. Thus, the story of Samuel and Jean-Raphaël and their surrogate mother Angie[24]: She carried and gave birth to their child, while continuing to work herself as a recruiter of other surrogate mothers for a Canadian surrogacy agency.[25]

Aware that the exploitation of women’s bodies can be an obstacle to general public approval of surrogacy, the question is tackled from a different angle: the civil status of children born by surrogacy contracts abroad. These children are said to be “ghosts of the Republic,” presented as second-class citizens to whom is denied French nationality and over whom the parents have no rights. The most emblematic case of this fight is that of the Mennesson family. This French couple used surrogacy in the early 2000s to have twins in California. The two girls have an American civil status. The couple requested the transcription of their American civil status to French civil status, including naming the intended mother as the legal mother, so that she does not have to go through adoption. After a decades-long legal battle, they won their case last October at the Court of Cassation (the highest level of the French judiciary system).[26] This problem of “ghosts of the Republic” is, however, propaganda, as the philosopher Sylviane Agacinski reminded us during his recent hearing by the Senate.[27]

This decision is a milestone for promoters of surrogacy, who know full well that systematic authorization to transcribe foreign birth certificates would de facto be equivalent to accepting and standardizing surrogacy in France.

 

A European and International Fight

Also very serious is that France has been participating since 2015 in the work of the Hague Conference on Private International Law on surrogacy agreements contracted abroad.[28] This group of experts is considering the modalities of an international legal framework in order to avoid civil status problems as a result of these types of conventions and taking into account the great diversity of global law. And “most experts have agreed, in principle, on the feasibility of a separate protocol on the recognition of foreign court decisions in cases of international surrogacy agreements.”

La Manif Pour Tous had the opportunity to report in May 2018 the problems posed by this work during a hearing of the Committee of Experts. First, we recalled that if France establishes a legal instrument for the regularization of surrogacy agreements, this would be the equivalent of automatic recognition of surrogacy around the world. Then we pointed out that some experts on the Committee were closely linked to the surrogacy industry. Thus, some of the Committee’s recommendations are strangely similar to a document from the powerful American Bar Association, an association of American lawyers who receive great benefits from the surrogacy business.[29]

However, France still officially refuses to open the door to surrogacy on its territory or for its citizens, either by recognition of surrogate mothers or by the automatic recognition of civil status. Nicole Belloubet, Minister of Justice, refuses to admit that France’s participation in the work of the Hague Committee of Experts is dangerously close to recognizing surrogacy and maintains that France’s position, however flawed, will not change.[30]

Isolated in its prohibitionist position, France suffers triple pressure on the issue of surrogacy: internal pressure with militant campaigns aimed at allowing this practice to be accepted as a “new right,” European pressure from the decisions of the European Court,[31] and finally international pressure. France is thus seen as a “market to be won”—this is what Melissa Brisman, director of Reproductive Possibilities in New Jersey, told La Manif Pour Tous very directly during a phone interview in March 2018.

In this context of ideological and mercantile pressure, it becomes very difficult to oppose the advance of what are presented as new rights to be won. Since its creation in 2012, La Manif Pour Tous has constantly raised public awareness of the dangers of procreation governed by technique and profits, which create incredible filiations, disconnected from all biological and psychic reality, and from the child’s needs.

Children are indeed, and unfortunately very often, the first forgotten of these “conquests.” Opening more reproductive rights means more and more trampling on the most basic needs of the child and, at the same time, his most legitimate rights, yet recognized by the International Convention on the Rights of the Child. The child has “the right, as far as possible, to know his parents and to be brought up by them,” according to article 7. At the height of manipulation, progressives pretend that the word “parents” does not necessarily designate the biological father and mother of the child, even though this article concerns the birth of the child and consequently those from which he was born.

La Manif Pour Tous therefore fights at all levels to urge politicians to genuinely defend the rights of the most vulnerable. We are active with French parliamentarians, and were interviewed by MPs and senators in the context of debates on the bioethics bill. With the partner association “Marchons Enfants” (“Let’s walk, children!”—referring to the first sentence of the French national hymn), it continues its mobilization on a large scale: after the demonstration on October 6, “pickets for the rights of the child” covered France on the weekend of November 30-December 1, and thousands marched against the new bill opening IVF on January 19 of this year in Paris.

With EU accreditation, La Manif Pour Tous successfully acted to achieve, by the end of 2015, the condemnation by the European Parliament of all forms of surrogacy. For the 30th anniversary of the International Convention on the Rights of the Child celebrated in Brussels on November 20, 2019, La Manif Pour Tous recalled the respect due to all the rights of the child, including that listed in article 7. We stressed that this right implied in particular that we must fight by all possible means against surrogacy and that the condemnation of this technique was not enough: Strong acts are necessary and urgent in this area.

Finally, as an advisory organization in the UN since 2016, La Manif Pour Tous is also working to promote a different European voice.

 

To Conclude

Fighting the indefinite extension of individual rights, particularly in matters of procreation, is very difficult today and the will and the capacity to oppose differ greatly from one country to another. Many western European countries—Denmark, Spain, Great Britain, Greece, Luxembourg, the Netherlands, Portugal, and others—have unfortunately remained passive and have seen their legislation admitting ever more transgressions: later and later abortion, sexual education imbued with gender ideology, IVF without medical reason, surrogacy, etc. Only Italy and France have been fighting for years to avoid such excesses.

On the central and eastern European side, reproductive rights remain much more restricted. Some countries even see associations organizing and acting to protect future generations. This is why Croatia, in 2013, anticipated the effects of gender ideology by defining marriage in its constitution as the union of a man and a woman. In other countries, governments themselves intervene: Hungary, for example, refuses to disseminate the sex education promoted by the European Union in its schools. This difference of views regarding reproductive rights is even one of the reasons for the current disagreement between Brussels and Budapest. While every European country is theoretically sovereign over every issue regarding family, strong criticism of the EU against Hungary speaks clearly about international pressure for reproductive rights.

However, as La Manif Pour Tous has been saying since 2012: “We never give up!”

 

 Ludovine de La Rochère is President of La Manif Pour Tous.


[1]     United Nations, “Report of the International Conference on Population and Development,” Cairo, September 5-13, 1994, p. 9, available at https://www.un.org/en/development/desa/population/events/pdf/expert/27/SupportingDocuments/A_CONF.171_13_Rev.1.pdf.

[2]     “Loi relative à l’extension du délit d’entrave à l’interruption volontaire de grossesse,” website of the French Senate, March 21, 2017, available at https://www.senat.fr/dossier-legislatif/ppl16-174.html.

[3]     “The medical conscience clause relating to abortion is debated at the Assembly,” Le Monde (March 23, 2019), available at https://www.lemonde.fr/sante/article/2019/03/23/la-clause-de-conscience-des-medecins-relative-a-l-ivg-fait-debat-a-l-assemblee_5440063_1651302.html.

[4]     “Rights of transgender people: where is Europe at?” Toute l’Europe, August 4, 2011, available at https://www.touteleurope.eu/actualite/droits-des-personnes-transgenres-ou-en-est-l-europe.html.

[5]     “Civil Status of Transgender People: The ECHR Confirms the Recommendations of the Defender of Rights,” DéfenseurDeDroits, April 11, 2017, available at https://www.defenseurdesdroits.fr/fr/actus/actualites/etat-civil-des-personnes-transgenres-la-cedh-conforte-les-recommandations-du.

[6]     “PMA : quels droits en Europe?” Toute l’Europe, August 23, 2019, available at https://www.touteleurope.eu/actualite/pma-quels-droits-en-europe.html. 

[7]     Véronique Sehier, “Droits sexuels et reproductifs en Europe : entre menaces et progrès,” Conseil Économique Social et Environnemental, adapted November 12, 2019, available at https://www.lecese.fr/travaux-publies/droits-sexuels-et-reproductifs-en-europe-entre-menaces-et-progres. 

[8]     Ibid.

[9]     “Vu de belgique.La France refuse de reconnaître les ‘bébés Thalys,’” Courrier International, May 5, 2014, available at https://www.courrierinternational.com/article/2014/05/05/la-france-refuse-de-reconnaitre-les-bebes-thalys. 

[10]   Christine Mateus, “PMA : un bébé sous 24 mois ou remboursé,” Le Parisien, April 30, 2018, available at http://www.leparisien.fr/societe/pma-un-bebe-sous-24-mois-ou-rembourse-30-04-2018-7690644.php

[11]   Loup Besmond de Senneville, “65 % des Français favorables à l’extension de la PMA, selon un sondage,” La Croix, April 23, 2019, available at https://www.la-croix.com/Sciences-et-ethique/Ethique/65-Francais-favorables-lextension-PMA-selon-sondage-2019-04-23-1201017410.

[12]   Antoine Patinet, “64% des Français sont favorables à l’ouverture de la PMA à toutes les femmes,” Têtu, June 26, 2018, available at https://tetu.com/2018/06/29/pma-gpa-sondage/.

[13]   Michel Feltin-Palas, “Extension de la PMA: la grande récup des sondages,” l’Express, October 10, 2019, available at https://www.lexpress.fr/actualite/societe/extension-de-la-pma-la-grande-recup-des-sondages_2101887.html.

[14]   Céline Hussonnois-Alaya, “Pénurie de donneurs, stocks de sperme: pourquoi la PMA pour toutes n’est pas pour demain,” BFMTV, September 24, 2019, available at https://www.bfmtv.com/societe/penurie-de-donneurs-stocks-de-sperme-pourquoi-la-pma-pour-toutes-n-est-pas-pour-demain-1772995.html.

[15]   Ibid.

[16]   Sébastien Grob, “Ouverture de la PMA : la pénurie de sperme, risque à anticiper,” Marianne, July 30, 2019, available at https://www.marianne.net/societe/ouverture-de-la-pma-la-penurie-de-sperme-risque-anticiper. 

[17]   “The Business of Sperm Banks,” The Economist, September 14, 2017, available at https://www.economist.com/business/2017/09/14/the-business-of-sperm-banks.

[18]   “La PMA, un marché à 20 milliards de dollars,” France.TV, May 21, 2019, available at https://www.france.tv/france-2/infrarouge/999899-la-pma-un-marche-a-20-milliards-de-dollars.html. 

[19]   “TDOR 2019, La Transphobie Tue Toujours, l’État Reste Complice!” InterLGBT.org, November 19, 2019, available at https://www.inter-lgbt.org/tdor_2019/.

[20]   “Étude de législation comparée n° 182 - janvier 2008 - La gestation pour autrui,” Website of the French Senate, available at https://www.senat.fr/lc/lc182/lc1820.html, accessed February 3, 2020.

[21]   Thomas Robert, “Jarry évoque ses deux enfants nés par GPA : ‘Je suis tellement fier d’être papa,’” Télé-Loisiers, November 12, 2019, available at https://www.programme-tv.net/news/people/243630-jarry-evoque-ses-deux-enfants-nes-par-gpa-je-suis-tellement-fier-detre-papa/.

[22]   Anthony Verdot-Belaval, “Alex Goude : ‘Le jour où je suis devenu papa par GPA,’” Paris Match, February 17, 2017, available at https://www.parismatch.com/People/Alex-Goude-Le-jour-ou-je-suis-devenu-papa-par-GPA-1131056. 

[23]   Interview by Benoît Daragon and Christine Mateus, “Marc-Olivier Fogiel : ‘J’oublie que mes filles sont nées d’une GPA,’” Le Parisien, October 3, 2018, at http://www.leparisien.fr/societe/marc-olivier-fogiel-j-oublie-que-mes-filles-sont-nees-d-une-gpa-03-10-2018-7910478.php.

[24]   Violaine Chatal, “‘J’ai porté le bébé de Samuel et de Jean-Raphaël,’ Angie raconte sa GPA,” Le Journal des Femmes, November 14, 2019, available at https://www.journaldesfemmes.fr/societe/combats-de-femmes/2565190-j-ai-porte-le-bebe-de-samuel-et-de-jean-raphael-angie-raconte-sa-gpa/.

[25]   @Le CoRP, “publi-reportage de promotion de la GPA. La mère porteuse est ‘chargée de recrutements et responsable marketing’, dit l’article. En oubliant de préciser : dans l’industrie de la GPA. Autrement dit, elle recrute des mères porteuses” (Twitter post), November 14, 2019, 12:45 PM, available at https://twitter.com/Le_CoRP/status/1195050209602129921.

[26]   Paul Chaulet, “GPA à l’étranger : la filiation du couple Mennesson entièrement reconnue en cassation,” l’Express, October 4, 2019, available at https://www.lexpress.fr/actualite/societe/justice/gpa-a-l-etranger-la-filiation-du-couple-mennesson-entierement-reconnue-en-cassation_2101397.html.

[27]   “PMA : audition de Mme Agacinski-Les matins du Sénat (24/10/2019),” YouTube, posted October 24, 2019, available at https://www.youtube.com/watch?v=KapvbzwzlQA, see 42 min., 50 sec. 

[28]   “Filiation: Maternité de Substitution,” Hague Conference on Private International Law, available at https://www.hcch.net/fr/projects/legislative-projects/parentage-surrogacy, accessed February 3, 2020.

[29]   Dean Hutchison & Natalie Kanellis, “Overseas Surrogacy,” American Bar Association, June 27, 2019, available at https://www.americanbar.org/groups/family_law/committees/assisted-reproductive-technologies/overseas-surrogacy/. 

[30]   Answer of Nicole Belloubet, Minister of Justice, published on November 5, 2019, to the written question of Charles de La Verpilière, right-wing MP from the department of Ain, published on March 19, 2019. 

[31]   “GPA : la CEDH répond à la France et consacre le droit à la filiation,” Huffington Post, April 10, 2019, available at https://www.huffingtonpost.fr/entry/gpa-la-cedh-repond-a-la-france-et-consacre-le-droit-a-la-filiation_fr_5cae4e8ce4b09a1eabf740cb.