We provide a deep analysis of the most recent bill aiming at updating French bioethical laws and we advocate to reverse their logic so that the individual’s control over its own body becomes the rule rather than the exception.
The ability for each one of us to have control over our own body is the bedrock of the liberal state, recognized by European laws, and yet it remains the exception in France.
Our society is often pictured as highly individualistic and prompt to whims, it is nevertheless the State which decides what is authorized or not when it comes to our physical integrity.
In France, the scope of public intervention is particularly illustrated by the prohibition of surrogacy or all the restrictions that apply to access to genetic data, to life termination as well as the disposal of one’s remains.
The human body becomes a space controlled by the public.
French bioethics regulations are in the sole hands of the State and handled by experts appointed by the administration. “Bioethics” has been cornered into a “biolaw” framework.
While French citizens are mainly in favour of progress brought by science, their actions are still constrained by what Daniel Borillo calls « medical paternalism ».
The new bill of bioethical laws promoted by the French Government does make significant bioethical progress, for example by guaranteeing access to assisted reproductive technology for all women or advanced research on embryonic cells, but the ideology of bioethical centralism remains firmly in the background.
Family structure has dramatically changed over the past fifty years. Today, families are also nuclear, one-parent, homosexual, extended, etc. Both relationships within the couple as well as between parents and children cover nowadays many different situations.
It is the notions of project and elective affinities that shape more and more families, away from any form of naturalism.
In order to respect the essential principles of freedom and equality, the state needs to recognize the legitimacy of such a plural reality by erasing every persistent hierarchy between the different forms of family. That is what Daniel Borrillo (jurist and researcher at the CNRS) suggests in this new essay of our GenerationLibre Collection, in partnership with Presses Universitaires de France (PUF).
Because family isn’t a lawful arrangement but a purely private one, this essay offers to remove any determinism from family bonds and to substitute a new contractual model to the current institutional framework.
The contract theory contrasts with the patriarchal view of family because it gives the possibility to build relations based on full and free consent. This law revolution implies reforms such as the removal of matrimonial regimes and forced heirship, or the legalization of surrogacy in France.
At a time when the neo-conservative movement seeks to constrain family structure into transcendent entities, the contractualisation of family bonds offers a realistic alternative that guarantees both family plurality and respect for privacy.
The principle whereby the individual acquires the full control and use of its body is one of the specific features of the very idea of modernity. It is thanks to the break-up with the natural domination of monarchic absolutism and with the christian concept of the body as a temple of God that the democratic power delegation to the representatives of the people was made possible.
Article 8 of the ECHR recognises the right of each individual to “personal autonomy”, thus accepting “the possibility of engaging in activities perceived to be of a nature that is physically or morally harmful or dangerous to oneself”. Yet today we seem to get closer to these past conceptions.
Indeed, the political power in France keeps on limiting the freedom to control one’s own body. In seeking to protect the individual against oneself, the state shows a dangerous tendency to restrain and control more our lives. A mutation has taken place.
Political power in France constantly limits the free use of one’s body by seeking to protect the individual from itself.
Subjective human rights are henceforth subordinated to the objective right of mankind. The consequence is that certain individual choices are deemed “essentially” bad because they are opposed to this principle of “respect for human dignity” which is claimed by a new state paternalism.
On the one hand, it appears necessary to include the free use of oneself as a fundamental right in the French Constitution. On the other hand, we need to ensure that the actual decision-maker is truly the individual, and no one else, on specific issues such as surrogacy or euthanasia.
