ABSTRACT
The practice of surrogacy has not received a favourable reception in France, being first viewed as an ‘eccentricity from across the Atlantic’ (RubellinDevichi (1987), p 489) then, as the practice was more widely reported in the press (Le Monde, 11 June 1980 and 3 January 1986; and ‘Un acte d’amour’ by M and G Libauduere, La table ronde (1984), cited in Rubellin-Devichi (1987)), regarded as a practice deserving condemnation, which it duly received from the French National Ethics Committee, the Ministry of Justice and the Ministry of Health. This disapproval has apparently been reflected in various opinion polls and the views of the majority of legal and medical practitioners and academics (see Steiner (1992)). The practice of surrogacy has drawn passionate reaction from many areas of public opinion. In the first phase of the debate, surrogate motherhood was said (by sociologists and lawyers) to be common to the history of humanity (Byk (1992)). This view meant that surrogacy did not question conceptions of the traditional family (PapiernikBerkhauer (1984), cited in Rubellin-Devichi (1987)). However, these views were soon overtaken, with disapproval replacing support for the practice. The Catholic influence in a country like France can be overestimated and is sometimes practically overlooked, but while it does not determine many ethical and moral decisions in the country, Catholicism tends always to be in the background when it comes to matters of la famille. In 1985, a majority of opinion opposed the payment of the surrogate mother (see public opinion poll, IPSOS, Femme pratique, September 1985) and only 30% of women supported altruistic cases of surrogacy exposed in the media. Another French opinion poll dated 12 and 13 October 1987 shows that 56% of the French do consider that a surrogate mother who has agreed to give up her child for money to a commissioning couple should fulfil the arrangement entered into with the surrogate (Le journal du dimanche, 18 October 1987, cited by Byk (1992)). In 1987, the French Government implemented measures to terminate the activities of private surrogacy agencies. Those who worked in and with private agencies ‘claimed that they were working on a non-profit basis in order to help infertile couples and to prevent the existence of a black market in this field’ (Byk (1992), p 157), but the courts nonetheless decided that surrogacy was illegal for two main reasons: (a) the agreement concerns the human body and, as such, is prohibited by Art 1128 of the French Civil Code; and (b) any kind of contract by which prospective parents give up their future child constitutes a criminal offence. (see Association Nationale pour
l’Insémination Artificielle, Tribunal de Grande Instance de Paris, 20 January 1988; Association Les Cigognes, Conseil d’Etat, 22 January 1988; Association Sainte Sarah, Tribunal de Grande Instance de Créteil, 23 March 1988; Association Alma Mater, Cour d’Appel d’Aix-en-Provence, 29 April 1988).
