Human Body Indisposability Principle

Extract

[...] Scope and interest of the judgment The judgment of 31 May 1991 constitutes a cornerstone of the jurisprudential construction related to surrogacy in French law. It asserts a clear principle position, refusing any legal recognition to a practice considered as an affront to the dignity of the human person and to the indivisibility of the state of persons. The rigor of this position contrasts, however, with the evolution of international law, and notably with the case law of the European Court of Human Rights (ECHR), which has progressively shifted this posture in the matter of recognition of the filiation of children born through surrogacy abroad. [...]

[...] This decision, taken following a referral in the public interest initiated by the Prosecutor General, goes beyond the framework of a simple individual dispute to become a true reminder of the fundamental principles structuring French civil law. The solution adopted, resulting in a cassation without referral, aims exclusively to standardize the jurisprudence and consolidate the coherence of the legal public order in the face of social evolution and scientific progress. A. Facts The case originated from a situation marked by the biological impossibility for the plaintiff to ensure a pregnancy. In order to compensate for this infertility, the couple resorted to a surrogacy agreement. [...]

[...] At the end of the pregnancy, the child was declared to be the husband's, without any indication of biological maternity. Desiring to establish a legal link with the child, the wife introduced a request for full adoption, thus consolidating the commanded filiation legally. B. Procedure The judicial pathway of the case reveals a jurisprudential oscillation between a formalist approach, based on the strict respect of the principles of public order, and a more pragmatic approach, prioritizing the interest of the child. [...]

[...] Solution of the Court of Cassation The Plenary Assembly responds negatively and proclaims with authority the illicit nature of any contract of gestation for others. Two principles of public order found this prohibition: the indivisibility of the human body (Article 16-1 of the Civil Code) prohibits any convention by which a woman agrees, even freely, to carry a child with the intention of handing it over to others; the indivisibility of the state of persons, correlated to the previous principle, opposes any contractualization of filiation and maternity, thus excluding the legal recognition of a filiation based on a voluntary commitment rather than on biological or legal reality. [...]

[...] This interrogation crystallizes the fundamental debate on the articulation between the indisposability of the human body and individual autonomy. From then on, a question arises with acuity: does the principle of indisposability of the human body constitute an absolute dogma, or can it be adapted in the light of social and technological evolutions? This questioning imposes itself with increased intensity in the face of contemporary changes in the law: gestational surrogacy payment for the donation of biological elements, or even biomedical advances are shaking up the classical paradigms and questioning the immutability of the prohibition on any contractualization of the body. [...]