These are subjects which have the gift of dividing public opinion, as they raise ethical questions on procreation, the right to dispose of one's own body, or even filiation and access to origins for children born following these procedures:that of medically assisted procreation (PMA) , and that of one of its modalities, surrogacy (GPA) . These techniques can however allow individuals or couples, whether they are infertile or incapable of reproducing on their own because of their sexual orientation, to access parenthood. However, these are sometimes somewhat unknown to the general public in their particularities – which can easily lead to sweeping opinions that a better understanding of their respective issues and contributions would make it possible to measure. So, what is the difference between PMA and GPA? And what is the current state of play with regard to them in France, which has long had one of the most restrictive legislations in Europe?
To start, you may need to take a look back at your biology lessons, which certainly go back a bit (after all, we're on the senior's mag!). We are going to talk here about spermatozoa, oocytes, gametes... If the first two are probably familiar to you (the oocyte only becomes an ovum strictly speaking once fertilized by the spermatozoon), the last is only a term encompassing both:gametes simply designate the male or female reproductive cells. And so to make a baby, it is necessary for a male gamete (the sperm) to fertilize a female gamete (the oocyte). However, as some individuals have fertility problems, this reproductive process is not always successful. This is where PMA comes in.
PMA is therefore the diminutive of medically assisted procreation, or in legal and medical language, medically assisted procreation (AMP). This allows individuals or couples who cannot have children to obtain medical assistance in this regard. It can also – theoretically at least, since this again depends on the legislation in force – be used to prevent the transmission of serious genetic diseases. To put it simply, it can therefore be summarized as all the techniques for manipulating sperm and/or eggs, in order to achieve pregnancy. In France, approximately one child in thirty is born today as a result of MAP, a technique that began in 1982 with the birth of this first "test-tube baby", as they were then called. There are two techniques:artificial insemination and in vitro fertilization (IVF).
Artificial Insemination consists of depositing sperm from her partner (for heterosexual couples where the man is not sterile) or from a donor in the uterus of a woman when she is ovulating. It is therefore a process where fertilization takes place naturally:it is simply facilitated by the medical process. The main problem in this regard is that of the identity of the donor, if it is used.
With in vitro fertilization , on the other hand, this fertilization is carried out in the laboratory, with gametes from one or both parents and/or donors. Only once an embryo has been created is it inserted into the uterus.
Surrogacy is a specific assisted reproduction procedure based on IVF. It consists of having a third person carry the baby of another couple (or of a single parent, although this is rare, including in countries where the practice is authorized). This is necessary when a mother cannot ensure the pregnancy herself (due, for example, to a malformation) or for same-sex male couples. The person who will receive the embryo is generally referred to as the "surrogate mother ":it is ultimately an IVF in the case of which the person carrying the baby does not intend to become its parent. We rather speak of procreation for others, if the surrogate mother also provides the oocyte used.
In France, surrogacy is particularly disputed, and in particular prohibited in France in the name of the principle of the unavailability of the human body, according to which it cannot be the subject of a contract or an agreement, and which is judged as essential to French law. By definition therefore, surrogacy cannot be accepted within French law, although there are in fact a certain number of exceptions to this principle, which in reality makes it rather a principle of non-patrimoniality as it is in force in many other countries, that is to say opposing lucrative practices (in the case of surrogacy, this would mean, for example, authorizing the latter, but refusing that any remuneration or benefits are given to the person offering his body to gestation).
In the countries where it is authorized, it can therefore be subject to remuneration (only in Romania in Europe), whereas it is only "altruistic" under other jurisdictions (this is for example the case in the UK).
Since the bioethics law came into force on June 29, 2021, some situations have changed, others not. Here is the current inventory of what it is allowed to do or not in France.
Until then, assisted reproduction was reserved for heterosexual couples whose infertility was proven (or who had had unprotected sex for at least a year), and of reproductive age (thus less than 43 years old for women). Today, the PMA is open to single women as well as couples of homosexual women . In addition, it is possible to resort to a double donation, that is to say of both male and female gametes, whereas a biological link with at least one of the two parents was previously required.
Does everyone have access to it? No, transgender people remain excluded , because in France, only the identity indicated in the civil status counts. It is therefore not possible for a trans man who nevertheless has oocytes and a functional uterus to make them available to a PMA if he has changed his marital status.
It is also now possible for a child from an ART to discover the identity of the donor(s) having allowed its birth by filing a request with the commission for access to origins. All donors are obliged to accept that their identity be revealed following a request. This was previously not the case in the name of the general principle of anonymity of donations of bodily matter (people who made donations that led to a birth before the enactment of the law will be contacted again after a request but can always decline to disclose their identity). And if the child can make this request once he reaches his majority, the general principle of the anonymity of bodily matter donations remains in force, which means that a couple cannot choose the identity of their donor. (or vice versa).
It is the doctors who manage the ART who are in charge of this decision, and their criteria are generally based on the physical resemblance between future parent and donor. In fact, however, we sometimes speak of artisanal sperm donations to designate the scenarios in which a person (often a relative) entrusts their sperm to another person or a couple in order to carry out fertilization at home and therefore without medical assistance (the reverse does not exist, the donation oocyte requiring medical means only available in the laboratory). These donations are, however, punished by law precisely in the name of this principle of anonymity, as well as the principle of gratuity if they are subject to remuneration, not to mention that they do not respect the health rules surrounding PMA. . A woman whose spouse has had her sperm frozen in order to use it later in an ART procedure cannot use it either if he dies, even if he has given his prior consent (the inverse question does not arise, since it would be a GPA, discussed just below).
Surrogacy is still strictly prohibited in our country , and has been since 1994, supposedly to avoid the commodification of wombs and children. This entails a certain discrimination against male homosexual couples, since unlike their female counterparts, they can still only resort to adoption to become parents - at least legally, because as is often the case in of prohibition, a black market (or gray, let's say, since it is authorized or tolerated in other countries) nevertheless exists, facilitated by the internet. For couples of homosexual men wishing to use it (or for women who cannot or want to conceive), it will therefore be necessary to go to one of the neighboring countries where it is authorized. The Court of Cassation recognized in 2017 that it was now legal for the spouse of the biological father of a child born abroad thanks to surrogacy to apply for adoption.
