2021 Bioethics law: The fate of embryos in the balance?
The bioethics law adopted in 2021 introduced a major modification. The principle of anonymity for the donors of gametes was replaced by the principle of access to non-identifying data by children born from such procedures, on reaching adulthood and at their request.
The lifting of anonymity, a new principle in ART procedures
The lifting of anonymity had been requested by associations of adults born from ART (Assisted Reproductive Technology) procedures. These requests were based on the right to know one’s origins “whenever possible” which is recognised for children in accordance with article 7 of the United Nations International Convention for children’s rights, a convention ratified by France.
People born through ART may therefore, on reaching adulthood and at their request, apply for access to the identity of the donor (surname at birth, first names, sex, date and place of birth) as well as their non-identifying data. A Commission for access by those born through ART to the data of third-party donors (CAPADD) has been established to meet such needs. The details of such data are provided in our article on the 2021 law.
This important change in the legal framework has caused a hiatus between the donations of gametes prior to the law, and those managed afterwards. In practical terms, the legislator retained a moratorium period during which the gametes collected prior to 2021 were used. In fact, the ART Centres were confronting a severe shortage at a time when the demand had substantially increased.
A decree “Establishes the date from which only gametes and embryos for which donors have consented to the transmission of their non-identifying data and the communication of their identity may be used for an attempted ART procedure”. In other words, the gametes collected prior to the 2021 law and whose donors failed to provide their consent to the transmission of their data must be destroyed. The text specifies an end date of 31st March 2025.
What fate for freeze-preserved embryos from an anonymous donor?
The question applies also to embryos obtained from the gametes of a donor outside the couple. Indeed, the decree covers these in its scope: “Gametes and embryos may only be used in an ART procedure for which the donors have consented to the transmission of their non-identifying data and the communication of their identity in the event of a request by a person born from such donation”.
If a freeze-preserved embryo is subject to implantation subsequent to next 31st March, it is not certain that a child born of such ART will be able to access its origins, which represents a breakdown in the equality of treatment. Should one consider that the embryo is the property of the parents and worthy of special treatment contrary to the stipulations of the decree?
ART specialists have reacted strongly against such possible destruction. When interviewed in le Monde, Pr Hamamah considers that “These couples have a right to use them right up till the day before the woman’s 45th birthday ; we have no right to change the rules of the game mid-process”. The same article questions the president of PMAnonyme who states that “We understand that these couples wish to retain their embryos, but the law must be applied, and the access to origins must be guaranteed for the children to be born.”
Contrary logics difficult to reconcile
The Minister for Health is confronting a conflict between the applicable law and the specific constraints of the courses followed by certain couples and their desire for a child.
Such constraints illustrate the difficulties which are specific to the ART procedure. Among the different breakdowns introduced by this procedure, the use of a third-party donor generates a conflict between the interest of the child to know its origins and the desire to preserve a filiation established legally by the ART procedure.
Furthermore, the parents, as well as the State according to the legal rules which it establishes, are invested in the right to life or death of the freeze-preserved embryos. ART therefore opens up abyssal questions on relationships with incipient human life.
