Medically Assisted Procreation and Legal Difficulties

1 Modern society is perturbed by the ethical, psychological and legal issues raised by advances in medically assisted procreation (MAP), which often lead to heated political and ideological debates, reported in the media. Parenthood has taken on new forms that compel us to reconsider traditional notions of the family. Irène Théry’s (2014) expert report on lineage and origins, with contributions from many specialists, was aimed at adapting the law to new family models. The results, which have been made public, suggest that greater legal equality is required, particularly in matters related to adoption and access to personal origins. Théry’s findings also suggest that female couples should be allowed access to MAP, by legally recognizing children born of surrogacy, etc. We explore these "contemporary changes in notions of filiation" (Godelier 2004) and examine the place occupied and the rights enjoyed by the various actors in the child’s life, whether or not these are granted by law.

2 This report, as well as the French law dated May 18, 2013 on "marriage for all" that granted homosexual couples adoption rights, have given rise to many passionate debates, and led us to question the definitions of “father” and “mother,” the relationship with traditions, the basis of filial ties, and the sense of family belonging. Laurence Brunet (2011) sums up the resulting uneasiness when she states that "what was the firmly established before is now becoming uncertain: such is the paradoxical result of applying new reproductive technologies to maternity." She uses as illustration "the belief that the mother's identity is a known, unlike that of the father’s, because it is she who gives birth, is now shaken" (ibid., 105). This is borne out by the fact that genetic motherhood no longer implies legal motherhood, particularly in cases where a donated egg or the services of a surrogate mother are used for a non-functioning uterus. Recent medical advances present opportunities that are now being used to satisfy the desire for children, which remains the basis of the feeling of personal, familial, and social fulfillment, and this is now forcing society to revisit notions of what constitutes filiation. What is it that makes us parents? Is it the shared DNA? Is it enough to have the legal status of a parent to become one? Or is it, as Charis Thompson (2005) asserts, the desire to be a parent that makes one a parent? Anthropologists have pointed out that in some societies, it is customary to share the upbringing of children (Lallemand 1993), so that adults responsible for raising children are not necessarily those who have conceived them. However, in France, the law often chooses erasure to manage situations that appear too complex because they break with traditional models.

An Additional Parent: Erasure as a Solution

3 For example, in the case of full adoption, the names of the child’s birth parents are denied civil status when the new birth certificate is created where only the names of the adoptive parents appear. There is no evidence to hint at this institutionally sanctioned falsification—the certificate indicates that the child is born of his or her new parents, and there is no mention of adoption. In blended families, the step-mother or the step-father is not granted any rights. In the case of donor insemination, the donor remains anonymous. Thus, in French society the additional parent is generally viewed as an embarrassment and the exclusivity of filial ties is maintained. We assume that this is primarily because multiple parental referents are seen as competitive. This raises the question as to how individuals psychologically deal with a family reality which, legally, is governed by erasure, silence, or non-recognition.

4 This is especially relevant in the case of MAP, which covers a broad range of techniques, including artificial insemination with the partner’s sperm or through donor insemination, in vitro fertilization (IVF) with embryo transfer, gestational surrogacy (a “borrowed uterus,” where a fertilized egg is transferred to the surrogate mother), or maternal surrogacy (where the surrogate mother is the gestational carrier). There are thus several ways of achieving the child's conception and gestation, which suggests that sometimes in order to "make a child," several persons may be required, which then raises the crucial issue of the status to be accorded to each.

Being Born through Surrogacy and Being Part of a Family

5 What before seemed "natural"―procreation, the transmission of one’s genes, conception and childbearing, raises questions today due to medical advances that have made "artificial" reproduction possible. The genetic and biological link, which until now formed the ideological foundation on which most of society based its understanding of filiation, is now being questioned. Increasing infertility among couples, right to parenthood claims by homosexuals, the decrease in the number of children available for adoption in France and abroad, etc., have made it necessary to turn to other means to achieve parenthood, including surrogacy. Although prohibited in France, surrogacy is legal in countries such as Thailand, Ukraine, Canada, the United States, India, and so on. Hence, French couples, both heterosexual (heterosexual couples may seek children born of surrogacy if the woman is infertile due to malformation or removal of the uterus) as well as homosexuals, travel to these countries to have children through others, a fact that creates problems when ascribing French civil status to such relationships.

6 It should be noted in this regard that France was censured in June 2014 by the European Court of Human Rights for refusing to recognize the filiation of children born of surrogate mothers abroad. Although the Taubira legislation of January 25, 2013 now allows French children born of surrogacy to be issued birth certificates if filiation with a French parent has been registered abroad, France leaves to the courts the responsibility of deciding whether or not such filiation should be given legal recognition and continues to maintain the ban on surrogacy. It justifies its position by pointing out the ethical need to protect the individual and prevent the commodification and commercialization of the human body involved in surrogacy, as this might indicate a lack of respect for human dignity. Nevertheless, the fact that his or her birth is granted recognition by the bestowal of French civil status is important if the child is to avoid remaining "clandestine" and in order to safeguard his or her filiation.

7 When non-traditional methods are used to create a family, how does a child thus born organize his or her world? Until now, the rule was that the woman giving birth was designated the mother, but adoption and surrogacy call this into question and lead us to question the very foundations of the parental role. Are we going to have "real mothers" and "fake mothers"? In the case of surrogacy, where egg donors are distinguished from gestational carriers, who should be referred to as the mother? The woman who passes on her genes or the one who offers her "host uterus" to the unborn child, who accommodates the child not only physically but also psychologically for nine months, who carries and gives birth to him or her? Again, it would be wrong to forget that "the egg donor transmits heredity, unlike the surrogate carrier whose motherhood is limited in time since she carries the child for nine months" (Delaisi de Parseval and Collard, 2007). And what if neither wishes to take up that role? What happens to the child? How can the child born of surrogacy psychologically construct the ties of filiation and write his or her family story?

8 Jean Guyotat’s work (1980) on filiation states that family ties between generations comprise a biological aspect, a legal aspect, and an individualistic aspect. Filiation thus involves not only the parents but also grandparents and, more generally, one’s ancestors, which together form the basis of the child’s story of origins. In fact, it is the psychological aspects of filiation that make us a link in the family chain. The sense of family belonging is part of an intimate experience that is not satisfied with legal civil status alone, but involves imaginary and affective reworking, which determines the shifts in identity, and the position each person occupies. The question of origins has given rise to many myths, because it is, by definition, an enigma. All young children are curious about the mystery of their birth and, if allowed to do so, will ask those around them.

New Family Scenarios and Discourse: A Vocabulary That Needs Revisiting

9 The desire to know where one comes from is a question that each individual is bound to ask him/herself at some point. As Freud pointed out, the primal scene is important as a primitive structuring phantasy in the construction of identity. But when the sexual mating of the parental couple does not lead to conception, how does the child conceive of his origins? This is all the more enigmatic if, as is the case with gestational surrogacy, the woman who carries the child does not contribute genetically to fertilization. In such circumstances, the terminology necessary for these new practices is lacking, and has led to the making up of terms such as "carrier mother," "intended parents," "foster mother," "social parent," "egg donor," "sperm donor," etc. When there are multiple participants in one’s prenatal history, it is necessary to find new signifiers to designate them so that they can take their place in the child’s discourse. The plurality of actors thus sometimes creates confusion in the narrative of the origins that is transmitted to the child, since habitual language use has been overturned by a new reality that challenges traditional norms.

10 Traditional roles are blurred, especially in the case of surrogacy, where the woman who hosts the embryo is called the "surrogate mother" although, paradoxically, the law denies her this status. We see that the vocabulary retains the influence of traditional cultural norms according to which the woman who gives birth is generally designated the mother. In many countries with surrogacy laws, the gestational carrier is not allowed to be the biological mother for ethical reasons. In cases where the woman both donates the egg and carries the child, we speak not of surrogacy, but of "maternity on behalf of others." To deal with these changes in ideas regarding parenthood, the existing terminology now needs to be reviewed; a new vocabulary is therefore in the process of being forged. Martine Gross’s works (2008) on the nomenclature of family ties in lesbian-parent families is especially illustrative. She observes that when women, say "we are both parents" instead of saying "we are both moms," the word "parent" is not gendered, since the word "parent" can refer to the father or the mother, or even a grandparent. Using a neutral term desexualizes parental functions. This may be viewed as an example of a "militant" discourse, since it "neutralizes" maternal and paternal roles, although the use of the term "two parents" suggests a compromise with tradition. Finally, the author points out that when the nomenclature of family ties is gendered, the vocabulary used is either egalitarian, with both women being addressed as "mom," sometimes in combination with the first name, or “only the legal mother is called mom, while the other is addressed by a nick name or even her first name" (Gross 2008).

11 Martine Gross (2012) continues her reflections on filiation in her book on gay fatherhood, where she states that homosexual men have three options if they are to become fathers: adoption, co-parenting, or surrogacy. She notes that the choice depends obviously on their ideas about paternity, but also on the legal options on offer. If they opt for surrogacy abroad, only one member of the couple can be the legal father of the child. This means that the spouses will need to discuss this among themselves as only one of them can be called "father." The documentary film Naître Père directed by Delphine Lanson (2013) on the subject is interesting. The film is a testimony by two men, Jérôme and François, who travel to the United States to have a surrogate child. Each man genetically contributes to the conception of one child each, both borne by the same woman. Their discussion in a car about how each would be addressed, especially since two babies are expected, is very informative. They discuss the vocabulary that should be used, invented if necessary, and how each parent should be addressed. One of them is struck by the fact that they seem to lack adequate terms for their situation. Can one describe their children as "twins"? Would it be appropriate to refer to the surrogate mother as the "godmother" of the children, etc.? Apart from the question of vocabulary, what remains is the basic issue of the symbolic inscription of filiation that, for the subject, bestows structuring value on family ties.

The Three Scenes and the Story of Origins

12 In "Naître père," where the surrogate mother is not the egg donor, the complexity of the situation that enables the “construction of filiation” and the need to seek social and legal validity for the relationship are both clear. This aspect is highlighted in the film at the meeting with the lawyer and the judge, as the meeting reminds us of the importance of a social contract for filiation. Although in cases of normal parenting, it is the child’s biological parents who conceive, give recognition to, bear, and educate him or her, this is not so in the case of surrogacy, or other circumstances, such as adoption. In such circumstances, traditional notions of filial ties need to be reviewed. Finally, in my opinion, what makes surrogacy different is the way that the scene of origins becomes broken up and unfolds within a specific temporality. I propose that, in the case of surrogacy, the individual’s personal origins should instead be considered as three separate scenes:

13

• the scene of parental desire,
• the scene of conception-fertilization,
• the scene of pregnancy (followed by childbirth).

14 In the case of surrogacy, the participants in each of these scenes are different, and they therefore construct a story of origins from multiple viewpoints, which when combined depict the child’s coming into the world. It is essential that each of these scenes be part of the parental discourse used to respond to the child's questions about his or her origins and that the participants who contributed to parenting are all included in the proposed narrative. If any one of the scenes is removed, or if some actors are ignored, the child will find it difficult to create the story of his or her coming into the world—the child’s story will have a "hole" that will result in a psychological impasse. Paul-Claude Racamier (1992) asserts that the "reflection on one’s origins is a process. It acts as a support, a fabric on which differential origins can be drawn. It guarantees identity and continuity." The story of one’s origins is therefore not a fixed reality to be made sacred. It is elusive and constantly being rewritten because it is non-representable. It is a sort of modeling, and can be read retrospectively to give it meaning. It is thus fundamentally a subjective fiction.

15 It is vital that the psychological and emotional materials necessary for the construction of children’s family stories be made available to them so that they can position themselves vis-à-vis those who have preceded them and contributed to their birth. Children born of surrogacy remain children like any others, a fact that cannot be reduced to the circumstances of their conception or their gestation. It is of primordial importance that they believe that they are born of parental desire, for what they seek most is reassurance of the love their parents feel for them. In this regard, I am reminded of the question asked by a nine-year-old boy born by surrogacy after his first trip to his surrogate mother's country and on meeting her children. In some emotional distress, he asked: "But why did she not keep me?” Even in circumstances such as adoption, there is often the same feeling of injustice among children who learn that they have been abandoned, that their birth mother has had other children she has kept (Combier 2004, 2013). The child's main worry, of course, is whether he or she is capable of being loved and is worthy of parental love. It is on this point that he or she is most in need of reassurance. It is important, therefore, that children feel that even if their parents have had to use help from others for them to be born, both parents wanted them and that this does not take anything away from the fact that, together, they are a family.

16 Children’s curiosity regarding their origins is inevitable and such curiosity is quite fundamental, as it nourishes the organizing phantasies of their psychic life. Although the parents of a child born by surrogacy do not participate in his or her gestation or conception, they nevertheless share sexual intimacy and mutual desire behind the closed doors of the parental bedroom. The child is excluded from this scene, which serves as a prohibition against incest and is a reminder of the significance of the difference of the generations. Access to the private space shared by the parents, when barred, leads to castration, whose structuring effects are essential for the construction of identity. What most arouses the child’s curiosity is the issue of sexuality and the fate of his or her own desires.

Parental Reverie and Surrogacy

17 It goes without saying that the parental discourse and how well the parental phantasy supports their own is what allows children to find their bearings. While conducting clinical research interviews on child well-being in single-parent families, I met Gerald and Paul, the parents of Emma, who was born by surrogacy and is now eight years old. The two men married when Emma's gestation was already under way, Paul having traveled to Thailand for the purpose before even meeting Gerald. When their little daughter asked them about the story of her origins, this is the answer Paul gave her: "It was Achara, your mother, who gave birth to you; you understand that Gerald and I are both men. . .we love each other but two men cannot have children naturally, we were therefore lucky to meet Achara, who is a very nice woman who helped us.” Paul's words indicate the need to pass through another scene, to have recourse to the body of the woman who gives birth to enable the child to be born, which underlines the fundamental necessity for the difference between the sexes. This discourse is therefore structuring for the child. But it is to be noted that nothing is mentioned about what is offered in exchange, that is, the money given to the third party. However, not mentioning the exchange that this financial compensation represents crystallizes the situation as a debt. What complicates the psychological situation further is the ban on surrogacy in France, which hinders the symbolic inscription of the relationship, since filiation relies heavily on social and legal recognition.

18 It is important to remind Emma, as well as all children born by MAP or surrogacy, that in order to have a baby, a man and a woman are both required and that in all circumstances birth involves the encounter of gendered and differentiated gametes. This does not detract from the fact that a couple, even those of the same sex, share sexuality and desire that can sometimes lead them to want to become parents and they may seek to carry out this plan in diverse ways. In other words, the new reproductive technologies nevertheless confirm that neither man nor woman begets children alone, although today the parental role may be dissociated from the question of begetting. It should also be mentioned that all subjects need to understand where they came from and who their parents are to take their place in the chain linking the generations and satisfy their desire for belonging. The story of prenatal history, initially carried in the speech of the Other, is therefore essential because it helps to nourish the myth of one’s origins and to anchor the relationship in the imagination.

Conclusion

19 While the work of anthropologists shows us that parenthood rests on shared roles and that the stories we invent to explain the mystery of life and death produce culturally shared myths, psychoanalysis teaches us that the ties of filiation are also part of an intimate discourse and have their roots in the story of origins and in phantasy. In other words, the ties of filiation are not a given. Both in the case of surrogacy and otherwise, it is a work under construction arranged on the basis of a subjective experience. In a fundamental sense, it is the symbolic inscription of filiation that helps organize and sustain the identity of subjects, allowing them to take up a differentiated place within the familial and social group, which, for its part, provides them with a fertile ground for achieving this.