Court ruling sets stage for abortion row in France
Feb 7, 2008
PARIS (AFP) — A ruling by France's supreme court on the right of parents to name a miscarried or stillborn foetus could stoke debate about the country's abortion laws and embryo research, lawyers and activists said Thursday.
The Court of Cassation, France's highest judicial court, handed down the decision late Wednesday.
It said parents had the right to have a name officially registered for a foetus that had been stillborn or miscarried, regardless of the foetal stage of development.
The court upheld a suit filed by three plaintiffs who had miscarriages between the 18th and 22nd week of pregnancy, with foetuses weighing between 155 and 400 grammes (5.5 and 14 ounces), but had been barred from registering a name with the authorities.
Until now, French officials have insisted that only foetuses that have developed beyond the 22nd week or weigh more than 550g (1.1 pounds), or have been certified by a doctor as having briefly lived, have the right to have a name registered.
The finding had been sought for years by campaigners, who said that by getting the legal right to name the foetus, grieving would-be parents could come to terms with their loss.
It also enables the mother of the foetus to claim maternity leave and parents to recover the body to hold a funeral. Before foetus were incinerated by the hospital along with waste tissues.
The administrative circular used by French officials that is at the heart of the controversy had been based on a 1977 World Health Organisation (WHO) definition of a viable foetus.
But the Court of Cassation said the circular had not been approved by parliament, and officials had overstepped the mark. An earlier decision by the Court of Appeal, in favour of the circular, was struck down.
State attorney Alain Legoux said the decision left a troubling legal void about the criteria for determining the survivability of a foetus, and this raised potential conflicts about abortion and embryo research.
He called on legislators to fill the void.
His appeal was echoed by Jean-Paul Delevoye, who acts as a mediator between the state and the public.
The ruling could fuel a simmering row over pregnancy termination, pitching feminists and supporters of abortion against the Catholic church and anti-abortion groups, sources said.
Chantal Birman, deputy president of a pro-abortion and contraception group called ANCIC, said the court's determination would provide a powerful emotional argument for opponents of abortion, as it implied that a foetus or an embryo of any stage of development had the right to a name.
"A foetus is only viable after 26 weeks," said Birman, a midwife by training. "You have to take the timetable of pregnancy into account."
The decision "will help a rollback (on abortion rights) that has been taking place in Europe for the last few months," Birman told AFP, pointing to changes in Lithuania, the Netherlands, Poland and Spain.
France has among the most liberal laws on pregnancy termination in the world. Abortion is permitted up to 12 weeks after the start of pregnancy, and can be carried out by a simple pill which induces miscarriage, rather than by operation.
Abortion was authorised in 1975 and is vigorously defended by French feminists, who see it as a cornerstone of their rights. The 30th anniversary of the passing of the law in January saw skirmishes in the media and rallies by both sides.
Delevoye, the ombudsman, urged parliament to pass a law on the right to name a foetus that would give legal force to the administrative circular.
But he cautioned that the change was more complex than it may seem, as the new law would also touch on other pieces of legislation.
One potential loophole, he said, was in retirement legislation. Women in France can retire earlier if they have more children, so lawmakers had to spell out clearly what this right entailed.