ABSTRACT
One example illustrates this incommensurability of biology and law: that of the so-called 'progressive ontology of the embryo'. The actual data of science seem to indicate that until the 14th day after conception, the embryo as a singular, idiosyncratic person does not yet exist, since it is only a cluster of totipotent cells. It would become progressively human. Law, on the other hand, cannot admit that there are degrees of personhood, that one can be a little more of a person or a little less of a holder of right depending on the number of weeks or months of existence, whether it be before or after birth. If law were to be guided by biology, it could only give the embryo the status of a thing (and therefore not a of holder of rights), and the problem would be how to explain that the same 'object' can change from thing to person a certain moment of time. However, French legislation has actually ratified this nonsense by dividing pregnancy into three periods. From conception till the end of the tenth week, the embryo belongs to the mother alone, who has a right to get rid of it. This means that the foetus has the status of a thing (it belongs to someone - as opposed to any human person, who cannot belong to anyone - and it can be destroyed without legal sanctions). From the tenth week till the sixth month, the foetus is said to be 'not viable'. It has relative protection since abortion can only take place for therapeutic reasons. Finally, after six months, the foetus is said 'viable' and possesses the status of a holder of right and it can be attacked only if the mother's life is in danger.1 This conception is inspired by biological time, where the foetus becomes only progressively human. In order to avoid a shocking word ('thing') as well as the miraculous transformation of a thing into a person, people use words or expressions such as 'foetus', 'embryo', 'parental project', even 'human material'. This is only a way to hide the problem, which is: how can we rationally justify that some entity does not have the same status nine weeks after the beginning of its existence than six months later on? That the central nervous system, for instance, develops after a certain number of weeks or days or months should be totally irrelevant to law, because being a person has nothing to do with having specific physiological capacities, however important these may be, as is
genes confirm the ancient and mediaeval idea of individuation through matter. They are the material elements which constitute the human species as well as what makes an individual what it is, i.e. the encounter between two genetic programs each of which is the result of a previous encounter, and so on.
