France : La Cour de Cassation restores life to the fetus
On February 8, 2008, La Cour de Cassation ( The highest court of Civil and Criminal Appeal in France) has pronounced three judgments recognizing the right of registration for all stillborn fetuses, after having examined the dossiers of three families to whom stillborn babies had been born between 1996 and 2001. The right of parents to register these births had been refused by the Registry, because these three stillborn babies were between 18 and 21 weeks gestation and weighed between 155 and 400 grams.
In fact, the general directive(repeated in a circular of November 30, 2001)ordered officials to register only those stillborn babies who were more than 22 weeks gestation or weighed 500 grams or more, basing their order on the World Health Organization’s (WHO)1977 definition : a baby could be deemed viable on condition that it be over 22 weeks or weigh more than 500 grams.
The law of January 8, 1993 stipulates that when a child (of more than 22 weeks or weighing more than 500 grams) dies before his/her birth has been registered and for want of the production of a medical certificate showing that the baby was born living and viable, the Registry issues a certificate of a lifeless child. This certificate is recorded in the Registry of deaths, stating the day, time and place of birth and allows, notably, the giving of first names to the child, to name his /her parents, to inscribe it in the family record book as a simple administrative note, to inscribe it in the family record book as a simple administrative note, to have access to certain social rights* and to authorize the parents to claim the body in order to arrange a funeral. (* This registration opens up rights to maternity leave, family allowance and pension)
The circular of November 30, 2001 anticipates the incineration of the fetus (of less than 22 weeks or weighing less than 500 grams)treated as a piece of anatomical waste, as the responsibility of the health establishment, but allows, out of consideration for the distress of the family, the practice of burial subject to the agreement of the mayor. Clinics are invited to inform families of the existence of this possibility. This is why some local authorities have set up “Angels’ patches” in cemeteries for the burial of stillborn babies and possibly fetuses.
In the face of the refusal of birth registration of their stillborn babies, the parents decided to take the case to court. Dismissed by the County Court of Avignon then, in May 2005 by the Court of Appeal of Nimes, they took their case to the Final Court of Appeal.
The Final Court of Appeal judged that the Nimes Appeal Court decision was based on the definition of the WHO, reiterated in a circular of 2001 which did not have the force of law, and “that in ruling thus, while article 79-1, paragraph 2, of the Civil code neither subordinates the establishment of a birth certificate of a stillborn child to the weight of the fetus, nor the duration of the pregnancy, the Court of Appeal, which has added conditions which the text does not anticipate, has violated it”.
As a consequence “by breaking the judgments given by the Court of Appeal, on the grounds that it had added conditions to the law which this latter does not anticipate, the final Appeal Court meant to indicate, on the contrary, that article 79-1 of the Civil Code not subordinating the registration of stillborn child neither to the weight of the fetus nor to the length of the pregnancy, all fetuses delivered stillborn may be registered in the Registry of deaths, regardless of their level of development”. The three dossiers were returned to the Court of Appeal of Nimes, made up of different judges and jury.
This decision “only means to respond to parents of stillborn fetuses, which for many years have tried to recognize the legal existence of these babies deceased in utero”. It is a victory that justice understands our approach and accepts our bereavement”, said one of the plaintiffs, Florence Basset, president of the Association Clara, who is hoping for an identical decision during the transfer to the Nimes Appeal Court.
The public prosecutor Alain Legoux, concluded his advice to the Final Appeal Court, by pointing out : “It seems to me manifest that the right to be registered, granted to stillborn children is unsatisfactory with regard to the equality of each person in the face of the obligations stemming from the public service of the Registry, and raises considerable moral questions in the absence of a minimum limit of gestation to be asked if we do not want the certificate written in the death register, to interfere with the period allowed for voluntary termination of pregnancy and even with that for embryo research.
“Jurisprudence has an eminent role to play in the updating, and in the new intelligibility of fundamental conceptual problems. But it seems to me, that in this case it is not for jurisprudence, but for the law to fix the norm.
“What better way of inciting the legislator, than to dismiss the circular of November 30, 2001 from the debate, quashing the decisions which are submitted to your judgment? Thus you will establish a total freedom of initiative for families, by connecting this with other texts relative to bioethics and especially those linked with terminations and embryo research, the legislator will be enabled to proceed to an harmonization”.
Jean-Paul Delevoye, a Parliamentary Commissioner, noting the inadequacy of certain texts or procedures, told AFP: “Today, the notion of viability depends on the judgment of the physician. Politics must define very clearly, based on the criteria of WHO, what is the notion of viability”. “I am simply asking that this circular be taken and given legal force”, he added. “This is exactly the sense of the reform which I am asking of the government and various departments: that the law establish very clearly, the 22-week rule,” he said. “On that basis, identical rights could be recognized for all parents whose child dies before the declaration of his/her birth, while being viable”. “France is one of the rare European countries to have a notion of viability which is not very precise”.
Dr. Claude Sureau, honorary president of the Academy of Medicine and a member of the National Consultative Committee for Ethics, acknowledged : “this is a legitimate decision, which may ease the suffering” of parents, while regretting “that there is no time limit: will this also be applicable to embryos of just a few cells? Will it be the same for embryos of a few millimeters of ectopic pregnancies?”. But he added, “this judgment should not be interpreted as an anti-abortion juridical development”, the child, in as much as he is not yet born “does not have a legal personality”, and the 1975 law “must be maintained in its entirety”. Dr. Sureau is fighting for “legislative, judicial and medical reflection on the status of the prenatal being”.
Maité Albagly, Secretary General of Family Planning, declared “This is a breach. I am outraged, I respect these families, but we will end up registering an embryo, from the moment of its conception, we are setting up something which could eventually call abortion into question”. And, with the opening up to social rights, she added, “why not give leave to fathers? And why couldn’t a woman who has an abortion have the right to maternity leave, even though it was originally created for caring for a baby?” ”All of this is linked to powers which are fighting to turn back the clock in the established rights of women”.
On the other hand, in a communiqué, The Alliance for the Right to Life hailed “the decision of the Appeal Court (…) It is following the evolution of science which recognizes more and more the humanity of the fetus, the reality of its intra-uterine life at the physical and psychological level. It responds above all to the expectations of women, couples and families who suffer to see the stillborn fetus, that is to say dead during their intra-uterine life, treated as hospital waste,.” The communiqué goes on : “For Tugdal Derville, general Representative of the Alliance for the Right to Life : We do not dream that this decision will call into question the abortion law. But we ask those who, like Family Planning, believe they must brace themselves against this law in order to refuse any evolution of the status of the body of the fetus, to simply listen to what women say. By opposing the recognition of grief caused by the loss of a fetus, we prevent them from rebuilding their lives after such a trial. It is important that this loss be recognized, this is a question of justice and humanity. It is time to impugn a so-called feminism which denies the reality of pregnancy and prenatal bereavement.”
The Women’s Grand Lodge of France (GLFF) stated in a communiqué dated February 14 that the status of person should not be given to the fetus “in order to avoid the potential drift towards calling into question the right to voluntary interruption of pregnancy”. It “understands the need for women to be able to grieve. This situation has no link whatsoever with the law which defines the rights of the person”. “The legislator has avoided giving status of a person to the embryo, the fetus. This position must be maintained”. The women’s Grand Lodge of France will remain vigilant to all of the specific actions which would risk calling women’s right into question”.
Archbishop André Vingt-Trois, the Cardinal Archbishop of Paris, answered questions put to him by Ouest-France on February 18. “When the Final Court of Appeal decides to legitimize the registration of a fetus as a member of the family, this indeed signifies that the fetus has a status. What has happened over the past 50 years, is on the contrary a rampant transformation; in fact, of legal status of the fetus and of the embryo. They have been put on the level of things.” The cardinal went on to explain that “The position of the Church is that one must act as if the embryo were a person. There is a human continuity between the initial cell and the human being which is born. If we do not wish to destabilize this perception of human continuity, let us respect the first moment as we do the last. This is the application of a principle of precaution. Endangered animal species are protected, we must also protect mankind!”
However, he continued, “To this day, abortion has never been legalized. It has been decriminalized, which is not the same thing. Mme. Veil never wished to establish a right to abortion. She wanted to relieve situations of distress by not allowing a penalization which was considered at the time as disproportionate. Thus we can now define the status of the embryo and the fetus in the current framework.”
Words which Dr. Jean-Pierre Dickès, President of the Catholic Association of Nurses, Doctors and Health Professionals (ACIM) clarified with some crucial precision in a communiqué : “In 1994 abortion as a crime was suppressed from the Penal Code. In 2001 the Aubry law - which replaced the Veil law - made abortion a woman’s right.” (Sources : AFP/cour de cassation/ADV/Ouest-France/acimps.org)
