1.1. ART from iusnaturalism’s point of view

Among the partisans of iusnaturalism, Thomas Aquinas considers that law cannot be separated from human nature which is naturally (innately) inclined to its own ends. He refers to the “natural law”³ that precedes any positive law. This natural law ^{(4, q.94)} has its own precepts which comes in the form of natural inclinations which are specific to man and which are inscribed in his being. There are five such inclinations ^{(4, q.94a.2}; ^{5, pp.410-414)}: to the good, to the preservation of the species, to the knowledge of the truth, to life in society, and to sexuality. ART can be approached from the natural inclination to sexuality and to the preservation of species.

According to Pope Benedict xvi, to avoid accusing this vision of natural law as a specifically Catholic doctrine, not worth bringing into the discussion in a non-Catholic environment⁽⁶⁾, it is important to remember this fact. Thomas Aquinas essentially takes up the Aristotelian views according to which man finds his end in responding to the fundamental requirements of his nature, therefore in seeking happiness in harmony with rules received and to take the right means to achieve it^{(7, p.48)}. In this context of natural inclinations, procreation is considered, by Aristotle and by Thomas ^{(8, viii, lect.12, n.1719-1725)}, as an end of marriage. Aristotle includes marriage in his treatise on friendship. Here is how he presents his idea:

As for conjugal affection, it seems to be a direct and immediate effect of human nature. For man is inclined by his nature to live with woman, even more than to live in political society; all the more so (I say) because the existence of the family is necessarily prior to that of the city, and the propagation of species is a law common to all living beings ^{(3, viii, c.12, 1162 a6-8)}.

This quote from Aristotle in the Nicomachean Ethics is important for us. In the light of the Aristotelian vision and Thomist thought, the law concerning ART must respect the natural order of things:

It is distinctly clear that “natural law”, as presented by Aristotle and Thomas, does not concern only the biological aspect in the field of sexuality, but also the human and the politic one. This is why the authority that will legislate in this area is required to respect what nature dictates. Procreation, as an integral part of sexuality, finds its fulfillment in married life between a man and a woman.

1.2. ART from Positivism’s point of view

In contrast, Positivism has another approach. For example, Hans Kelsen, the father of positivism known as the “pure theory” of law, asserts that the law finds its foundation in the separation ^{(10, p.14)} between “is” as fact/nature (sein, essere) and “is-ought to” as norm (sollen, dover essere). Thus, he introduces a dichotomy in legal thinking. For the legal philosopher, one cannot speak of natural law in the legal field. Law is always positive, and its positivity lies in the fact that it is created and annulled by the acts of human beings, and is therefore independent of morality^{(11, p.115)}. In other words, the law is completely separated from the sphere of nature, morality, psychology, sociology, and religion. The only object of the law is the legal system and nothing else! In this legal positivism, the rule imposes itself quite simply because it is the rule and because it is voted according to a sovereign legal order, namely the state ^{(12, pp.17 ss)}.

The approval of the first article of the new bioethics law is part of this vision. Neither nature nor ethics finds a place in positivism. In this regard, Deputy Emmanuelle Ménard expressed it in her own way during her speech at the National Assembly on June 9, 2021, addressing those who voted for this project, which she compares to a Pandora’s box that must not be opened.

After three readings and despite some 1539 amendments tabled but rarely defended […], this Pandora’s box is open, wide. By whom? By yourselves, apprentice false gods who believe you are above everything, common sense, reality, our carnal nature and above all, and this is the most serious, the best interests of the child ⁽¹³⁾.

Separated from reality, from good reasoning, from the risks and abuses it can bring, this law —this positive law— constitutes an “ethical shipwreck”, in the words of Madame Ménard, because of numerous transgressions that do not conform to the right reasoning in acting, to common sense. The content of this law is no longer determined by speculative and practical reason through their contact with reality, the true and the life. Its content is determined only by a speculative reason —a positive law— simply because it emanates from a sovereign authority. Procreation is emptied of its primary meaning as being an end of marriage; the interest of the child is suppressed to be replaced by the instrumentalization of the child; family, filiation and parenthood undergo a fundamental change in their natural identity to meet the wishes of a few adults. The moral order and the social order are excluded from all legislation.

This kind of law seems to be attached according to Hervada to a “modern justice” ^{(2, p.34)} that deprives heterosexual couples of the natural right to procreation by transforming this same right into a right accessible at any time by positive law. This constitutes a direct attack on the ontological dignity of the person, since the only measure of justice is human dignity ^{(2, p.65)} which must not be crossed. Therefore, Hervada wrote that:

Positivism has forgotten the civilizing element par excellence of right, which is natural right. […] Man does not present himself before others as a being who can be treated according to whims, but as a dignified and demanding being, bearer of rights which are inherent in his own being ^{(2, p.9)}.

Clearly, it seems that right reasoning in acting does not have a role in positive law regarding bioethics. In consequence, it appears that the bioethics law is just reducing the human being to an object.

1.3. ART and reductionism

Not basing the law on the recta ratio is simply deviating from reality; and the one that we treat in this law is human being, which is one of the most complex realities of the universe. Therefore, it can be reduced by a utilitarian perspective (a). It should be treated with an integral approach (b).

2.1. The power over the most weak

Who has legitimate authority, has power and responsibility comes with it. Power is linked to the success of a political movement, to the success of its representatives —which remains legitimate. However, power is also governance. It has the vocation to the search for justice, to the compliance with the recta ratio, to the search for the general interest and the common good especially the three fundamental goods: life, freedom, and health. Therefore Pope Benedict XVI, relying on Saint Augustine who —in The City of God— insists on the link between law and the State and expresses this situation of separation between power and right. He assures:

We have seen how power became divorced from right, how power opposed right and crushed it, so that the State became an instrument for destroying right […] capable of threatening the whole world and driving it to the edge of the abyss. To serve right and to fight against the dominion of wrong is and remains the fundamental task of the politician. […] Man can destroy the world. He can manipulate himself. He can, so to speak, make human beings and he can deny them their humanity. How do we recognize what is right? How can we discern between good and evil, between what is truly right and what may appear right? ⁽⁶⁾.

In this perspective, instead of defending the newborn’s right to life, which in France is not a constitutional right, the new bioethics law defends the right to freedom detached from responsibility. The most fragile of human beings, the embryo/fetus,⁵ is outright excluded from humanity. It is true that the legal status of the embryo/fetus is not defined in French law ⁽¹⁷, ¹⁸⁾, which does not place it in the category of “juridical person” as a “physical person”,⁶ or in that of “thing” as object of law. However, while this status is not officially settled in ethical-legal debates, the new bioethics law, forced by the political power, closes the door to any jurisprudence concerning the status of prenatal being. Nevertheless, the legislator makes a distinction, in the 16th article of Civil Code,⁷ between a person and a human being; and by “human being” he is referring to the embryo according to Dhonte-Isnard ^{(17, p.177)}. In the first article of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine⁸ (1997), we can find the same distinction and the same use of the “human being” applied on the embryo/ fetus but without deciding on its qualification ⁽¹⁹⁾.

2.2. The false democracy

Moreover, if the law was voted by a majority, this shows the effectiveness of a true democracy. But the criterion of majority is sufficient. Pope Benedict xvi recalls that:

it is obvious that in fundamental questions of law, where the dignity of man and humanity is at stake, the majority principle is not enough: in the process of formation of law, each person who has a responsibility must seek itself the criteria of its own orientation ⁽⁶⁾.

Since the French legislation is based on the Bicameralism system (National Assembly as Lower House and Senate as Upper House), it appears that during the study of the new bioethics law’s project,⁹ there was no consensus between National Assembly and the Senate. Despite the thousands of amendments set forth by the deputies who voted against this law, it seems that there was not a real debate. In this regard, Mr. Deputy Patrick Hetzel¹⁰ said in an interview on June 14, 2021:

Systematically the government and its majority have done everything to ensure that the contribution of the Senate is rejected, non-existent, swept away by dogmatism; […] that this majority in the Assembly understood nothing of what the very spirit of bioethics laws should be. They bear the heavy responsibility of moving towards a law that no longer creates the consensus necessary for its collective acceptability. […] Where is the respect for the living in all this? Where is the application of the precautionary principle? We really wonder. ⁽²⁰⁾.

The same day, i.e., June 14, following this majority vote, the special Senate committee decided not to continue the third reading of the text for lack of constructive dialogue between the two assemblies, on a bill, however, with high societal stakes. […] The rapporteurs of the special committee regret, in particular, that the deputies refused any discussion⁽²¹⁾. On this, Senator Bruno Retailleau declared that the National Assembly does as it pleases, and always goes back to its initial position. We are at the end of the dialogue. The government is not listening to us⁽²¹⁾. Indeed, the report of the senators of June 15, 2021 clearly indicates that the National Assembly has chosen to restore, concerning the ART, in new reading a text almost identical to that which it had adopted at second reading⁽²²⁾ while the Senate had deleted it in public session during the second reading of the text.

How can we speak of a democracy in this way when the purpose of the examination of this law between the National Assembly and the Senate is to find, through dialogue, a consensus which would respect the values and ethical principles, which would preserve society from excesses, and which would protect the dignity of the human person? Notwithstanding this complexity and without going into the details of the lobbying policy explained by Sarton ⁽²³⁾, the business according to Folscheid ⁽¹⁴⁾ and compromises of this law, it seems that the lack of democracy is related to the 45th article of the Constitution. In this article, we can find the right of the “last word”. The government, to speed up the legislative process without falling back into another “shuttle” between the two Houses, can ask the National Assembly —since it is the result of direct universal suffrage— to definitively rule on the legislative texts without taking into consideration what the Senate has advanced. I think that, to give a right and to apply justice in bioethics field cannot be enforced by laws just because a majority said so. History is full of examples where the majority were the cause of some human disasters.

Therefore, to search for the common good, authority must understand what real justice means.

3.1. The desire as right and the justice as reparation

To claim the right to a child in the name of justice, the desire for a child is often presented with a self-victimizing attitude. Olivia Sarton makes an interesting analysis of this desire. She affirms that what moves the human being is the desire to have what the other has. When one does not have what he/she desires, he/she acts as a victim. As soon as one is a victim, this one can claim and even demand rights. Moreover, the legislator continues to adopt this flagship prism in the development of the law. […] Anyone who opposes these rights immediately falls into the category of the persecuting executioner^{(23, p.34)}. I can apply to ART the five steps of Sarton’s analysis of desire ^{(23, pp.35-40)} in as self-victimization situation.

Thus, ART becomes a great solution to have a child based only on desire. On this point, the deputy Jean Leonetti —in a report on the law’s project relating to bioethics in 2011 speaking on behalf of the special commission— affirms ART is a procedure for repairing infertility, not a legal vector legitimizing unions or ways of life. It is not a solution to all desires for children or to social infertility^{(24, p.14)} and it cannot be accessed for personal convenience ^{(24, p.84)}. Therefore, in Italy in 2019 for example, Francesca Piergentili, PhD in Law affirms that:

Any desire or any need perceived by the individual as necessary does not come under the protection offered by the right to health: this right is not based exclusively on subjective perceptions, in particular in the field of artificial procreation ⁽²⁵⁾.

Leonetti and Piergentili agree on the fact that the right to health —ART is one of them since it is accessible under medical conditions— is not always compatible with a personal desire. To base this right on desire is already diverting medicine from its primary vocation: to cure and prevent (sometimes to predict). Folscheid argues this idea by affirming that ART fulfills a whole other mission: that of giving birth to a child, who is a third party, not a patient of medicine, and whose occurrence does not respond to any vital issue for its parents^{(14, p.40)}.

3.2. Equality and the right to a child

Furthermore, not allowing ART to all women¹¹, based on sexual orientation and the claim of a “right to a child”, is considered as discriminatory and against the constitutional principle of equality ⁽²⁶⁾.

However,

a) In response to the issue of discrimination, the Council of State, in a decision on September 28, 2018 —that was not received very favorably by some jurists ⁽²⁷,²⁸⁾— considers that

the principle of equality is not opposed either to the legislator regulating differently different situations or to derogating from equality for reasons of general interest, provided that, in one and the In another case, the resulting difference in treatment is directly related to the object of the law which establishes it ⁽²⁹⁾.

Different situations mean different ways of life such celibate person, heterosexual couple, or homosexual couple. In this case, justice does not lack its veracity or its vocation since it gives everyone their right in accordance with the situation in which they find themselves. The right belongs to those who are in the same situation and not in different situations.

According to Hervada, when it comes to equality, giving each one his own right, does not mean giving everyone the same thing and treating everyone in the same way ^{(2, p.122)}; this does not mean giving or legislating a right of access to ART for all so that justice can be applied.

Thus, in a case against France treated in 2015 before the European Court of Human Rights, we can read that:

It is from the perspective of equal access to a medical technique for all women that the Defender of Rights now calls for consideration of the question of assisted reproduction: equality for all women in access to medically assisted procreation ⁽³⁰⁾.

The assertion for which one would suffer an inequality by the prevention of access to the ART is erroneous ^{(31, p.122)} for two main reasons.

Indeed, this opinion is approved/reinstated by decision no. 421899 of the Council of State of 2018 cited above. Equality means treating in the same way only the people who are in the same or equivalent situations. When ART is prohibited if the criteria required by law are not met, justice does not lack its veracity or its vocation since it gives everyone their right in accordance with the situation in which they find themselves. The right belongs to those who are in the same situation and who bear naturally this right ^{(2, p.36)}.

b) As for the “right to a child”, the Convention on the Rights of the Child adopted on 20 November 1989, doesn’t approve such a right. The child is a subject of protection and not an object of desire. In the preamble, the Convention insists on the protection of the child even before their birth:

The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth ⁽³³⁾.

Protection means also not objectify the newborn on basis of desire. On this point, in its opinion of July 18, 2019, the Council of State specifies:

Neither the fact that adoption is already open to female couples and single people, nor the right to respect for private life, nor the freedom to procreate, nor the prohibition of discrimination or the principle of equality do not require the opening of the ART. The Council of State specifies in this respect that the concept of ‘right to the child’ having no legal consistency, the child being a subject of law and not the object of the right of a third party, no infringement to the principle of equality cannot be invoked on this ground ⁽³⁴⁾.

On this point, one might be surprised to see that even homosexual people adhere to it and refuse to serve as moral guarantee for an archaic and regressive vision of the human⁽³⁵⁾. They affirm that procreation is a natural given and “homosexual people cannot claim reparation from the State in order to alleviate discrimination since the latter does not exist”. They consider that the right to be a parent fits at first glance in the natural framework since it emanates from this natural inclination outside of which the impossibility of procreating is an objective fact and not discriminatory. Positive law is bound, in theory, to respect this objectivity of which the natural family made up of a man and a woman is the place of its exercise.

Giving access to ART to all people who are neither infertile nor sterile, to homosexual couples who refuse sexual relations with the other sex^{(14, p.41)}, to single women who —in the name of equality— wish to free themselves from male domination ^{(9, p.114}; ^{14, p.67)}, transforms ART from an aid into a “procreatic” according to Folscheid’s. The technique legalized by law, to respond to personal desires, replaces the natural act of procreation and the primary vocation of medicine, that of remedy.