France's highest court has outlawed surrogate motherhood, stating that it violates a woman's body and improperly undermines the practice of adoption. In a ruling issued late Friday, the Court of Cassation endorsed the arguments of the nation's solicitor general that "the human body is not lent out, is not rented out, is not sold."
The court also found the practice illegal because it was "a subversion of the institution of adoption." The ruling came after testimony by Jean Bernard, chairman of the National Committee on Ethics, who argued that adoption must be encouraged "when there are thousands of orphans waiting throughout the world."
"Certainly, it is necessary to fight the terrible unhappiness of sterility, but there are other solutions," Bernard told the court.
In the United States, only a few states have laws to regulate reproductive technology; even then, they may regulate only some of the technologies, such as surrogacy or sperm donation.
"It's a real hodgepodge of laws," said Joyce Zeitz, spokeswoman for the American Fertility Society, an organization of infertility specialists based in Birmingham, Ala. In Florida, for example, surrogacy is a felony offense, while California has no laws governing the practice.
In 1987, the potential for heart-wrenching disputes over reproductive issues became clear in the "Baby M" case involving surrogate mother Mary Beth Whitehead. A court ruled that Whitehead had no parental rights, but a higher court reinstated her legal status as the child's mother.
A different kind of dispute erupted in Tennessee last year when a divorcing couple, Junior Lewis Davis and Mary Sue Davis, disagreed over the fate of their seven frozen embryos. A judge ruled in favor of Mary Sue, who wants to keep the embryos in storage for later use. Junior Davis, who wants the embryos destroyed, has appealed.
The case in France involved a government effort to invalidate a contract in which a Marseilles woman had agreed to be artificially inseminated and to turn over the baby to the biological father and his wife, who was infertile.
The baby, named Marie, was born in February 1988, and the surrogate mother gave up the child, as agreed.
Despite its decision, the court did not order the couple to return the baby, but declared all such contracts invalid.
In 1988, the minister of health, Michele Barzach, ordered the three main French associations that recruited surrogate mothers dissolved. It was after that order that the government began cracking down on the practice.
In the case involving the Marseilles woman, the Paris Court of Appeals had upheld surrogate motherhood. It stated: "Surrogate motherhood, as an expression of free will and individual responsibility for those who do it without any concern for profit, must be considered legal."
The government appealed, arguing before the Court of Cassation that it should be illegal "to arrange for a child to be abandoned, to reduce a woman to be merely an incubating womb."
In his argument, the solicitor general, Henri Dontenwille, argued that if surrogate motherhood became "acceptable, as is the case in certain states in the United States, one could start choosing the mother according to the color of her eyes, her hair, etc., and one could thus plan the human race."
Last October, Germany's parliament passed a law banning surrogate motherhood, genetic manipulation and the use of a dead man's semen to produce a child. "Man is not God," said Friedrich-Adolf Jahn, a state secretary in the Justice Ministry, during the debate over the proposal.
The law punishes doctors who perform the procedures, not the women who undergo them.
_ Information from Times files was used in this report.