Family Law

France Proposes Allowing Women Rights That Are Shockingly Not Currently Permitted

A good first step, but there's still more to do.

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The French government, led by President Emmanuel Macron, recently proposed a new law that would permit single women and women in same-sex relationships to access assisted reproductive technology procedures, including in vitro fertilization (IVF). Shocking, right? I mean, shocking that is not currently permitted. In fact, not only is it not presently a service accessible for single women and same sex couples through the state-run health care system, but it is in fact prohibited to offer any such care through any means. In other words, you can’t even go to a non-state supported medical provider for help without breaking the law.

I spoke with Paris-based French attorney Fabien Guillaume Joly about the current situation, and his hopes for the proposed law. Joly explained that currently, mademoiselles and same-sex couples are forced to travel abroad — generally to Spain, Denmark, or Belgium — to fulfill their hopes of having a family. And even then, for married same-sex female couples, the non-biologically related parent does not have any parental rights to the child without first going through an adoption process.

Two Major Shifts

Joly explained the two significant shifts for assisted reproduction in France. First, it would lift the ban prohibiting single women and same-sex couples from using assisted reproductive technologies in France, and would specifically permit them to access free services through the state health system. That would mean up to four reproductive treatments (such as IVF). That’s a huge swing to go from prohibition to covered services! Second, Joly explained that the other major change proposed by the draft law is that children of single women and same-sex female couples, conceived from donor gametes, would have the legal right upon turning 18 years old to learn the identity of their donors.

Liberté, fraternité … and now égalité

Joly, in addition to being a lawyer who specializes in assisted reproductive technology, is also the spokesperson for an LGBTQ organization in France. He explained that his organization feels that the proposed law, while good, nevertheless has some significant flaws that they hope to correct before it becomes law. Specifically, as drafted, the law would create two different systems for those who undergo conception with the help of donor gametes.

As it reads now, the proposed law would require the non-biological parent of a same-sex female couple to sign certain legal declarations of parenthood before conception, and the birth certificate of the child would reflect the declarations and that the child was conceived from donor sperm. By contrast, the non-biological parent in heterosexual couples who use donor eggs or sperm to conceive are not required to sign such a declaration, and their children’s birth certificates make no such indication of the use of a donor. Joly believes the system should be the same for all parents by donor gametes, and the birth certificates equal in treatment.

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Further, Joly notes that because the proposed law only applies to single women and same-sex female couples, the proposed clause to eliminate lifelong anonymity for donors anomalously applies only to the children of single women and same-sex couples. So, if you were conceived from donor sperm, you would have a right to know the identity of your donor if you happen to be the child of a single mother or same-sex female couple. But if you were born to a heterosexual couple, you would have no right to know the identity of your donor-parent.

To be sure, there are certainly differing stances on balancing the anonymity of donors with the rights of a child to know his or her biological history. But, regardless of your position, we can likely agree that it doesn’t make sense to apply the rule based on the irrelevant factor of the sexual orientation or relationship status of the parents.

I asked Joly about the availability of sperm and egg donors in France. He noted that there are some, but it is strictly illegal in France for sperm and egg donors to be compensated for their donations. That, paired with the elimination of anonymity (which arguably is already a relic of the past thanks to home DNA kits) may make donated eggs and sperm hard to come by.

Same sex marriage in France has only been legal since 2013. But given how quickly things have moved to accept same-sex relationships in France, Joly feels certain that the law will pass. His best estimate is likely in the first quarter of 2020. The only question is, will the form of law evolve to embrace equality more fully, or instead create two tiers of parents and children born by assisted reproductive technology?

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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