Embryonic reduction, reduction in women's rights

Article 28 of the law on bioethics went almost unnoticed during parliamentary debates, as in the abundant media production that surrounded the long parliamentary marathon undergone by this text. Adopted in terms almost identical to those proposed in the bill initially tabled by the government, it inserts a new II in article L. 2213-1 of the public health code: a provision which regulates the technique called "embryonic reduction" or "partial termination of pregnancy".

Embryo reduction is a practice consisting, in the event of a multiple pregnancy, of causing the death of one or more embryos or fetuses while preserving the gestation of the others. It aims in particular to avoid multiple pregnancies when these present a danger to the health of the pregnant woman or the development of the foetus. It can also make it possible to delete an embryo affected by a serious pathology while allowing the pregnancy of the other(s) to continue (this is sometimes referred to as selective termination of pregnancy – ISG – as opposed to embryonic reduction in which one does not " chooses” not the eliminated embryo, the objective pursued being simply to reduce the number of fetuses carried). Finally, it is likely, as for any termination of pregnancy, to respond to the simple request of a pregnant woman not to continue a multiple pregnancy for her own reasons (psycho-social reasons in particular). This practice, whose methods vary according to the stage of pregnancy², is not the subject of a precise count, so that it is not possible to know precisely how many interventions are carried out annually. The impact study of the law on bioethics reports a little less than two hundred interventions per year performed by multidisciplinary centers for prenatal diagnosis between 2008 and 2012³.

Before explaining how the text commented on here operates a restriction of the rights of women as they currently exist, let us quickly recall the general framework of the termination of pregnancy and its articulation with the practice of embryonic reduction.

Access to abortion already highly regulated

The conditions and procedure for accessing the termination of a pregnancy currently depend, as we know, on the degree of advancement of the pregnancy. this. Under the terms of Article L. 2212-1 of the Public Health Code, below twelve weeks of gestation, women can access termination of pregnancy on simple request, without having to justify any reason. sup>4. However, this intervention is not without procedural requirements: in addition to the qualifications required from health professionals authorized to perform the intervention, the women's request can only be satisfied after two consultations and must give rise to the written expression of consent⁵. One of the major developments in this system in recent years results from law no. two medical consultations⁶ and, on the other hand, the one-week reflection period initially imposed on women between the two medical consultations requesting termination of pregnancy⁷ .

After twelve weeks of gestation, pregnant women can no longer freely request the termination of their pregnancy. Abortion is then only possible in two specific cases and after an authorization procedure involving several health professionals and requiring the opinion of a multidisciplinary committee. First hypothesis: the case where the pregnancy constitutes a serious danger to the health of the pregnant woman. This case is the rarest, it only gives rise to about three hundred opinions favorable to the termination of pregnancy annually⁸. The notion of "serious danger to health" is broadly appreciated by healthcare teams: it may be a real danger to the woman's life, but the notion more broadly covers cases where pregnancy is a danger to his state of health, somatic⁹ or even psychic¹⁰. Second hypothesis, the case where "there is a strong probability that the unborn child is suffering from a condition of particular gravity recognized as incurable at the time of diagnosis"¹¹. This second case is the most frequent in practice, with nearly 7,000 authorizations granted annually¹². There is no list of the pathologies in question, the assessment of both the notion of “seriousness” and that of “high probability” being left to the assessment of the multidisciplinary advisory committees involved in the procedure. However, it is noteworthy that some of the people who obtain a favorable opinion on the termination of pregnancy choose despite everything to continue it¹³. In both cases, the termination of the pregnancy can be done whatever the stage of advancement of the pregnancy but can only intervene with the authorization of two doctors and after they have obtained the advisory opinion. of a multidisciplinary team. The only difference between the two procedures is the composition of said team¹⁴.

The situation in which the termination of the pregnancy is considered due to the state of health of the fetus is the only one in which there is a period of reflection for the pregnant woman. Introduced by the law of July 7, 2011, this reflection period of at least one week is simply offered to the person, except in the event of a medical emergency. Article 28 of the law commented on here removes the reflection period offered to women in the event that they have requested an interruption of their pregnancy due to a fetal pathology, which can only strengthen the autonomy of women, already largely surrounded during this procedure which anyway takes a certain time to establish the diagnosis.

In this system, what role does embryonic reduction take? Until now, it was not the subject of any specific legislative provision. From this state of the law, it was possible to draw two possible interpretations.

The status of embryonic reduction: a question of interpretation

The first possible interpretation of the texts governing access to embryonic reduction before the modifications introduced by the bioethics law, the simplest interpretation , is based on two more than traditional principles: "not to distinguish where the law does not distinguish" and "everything that is not prohibited is authorized". In this perspective, it is possible to consider that, under the state of the law until the reform commented on here, embryonic reduction could be practiced according to rules which varied according to the progress of the pregnancy: below twelve weeks of pregnancy, it could be freely requested by the pregnant woman, for any reason whatsoever, and, beyond, it was conditioned on a danger to the health of the woman or a pathology on the fetus or fetuses whose deletion is considered. It also seems that this situation has hitherto governed the practice of embryonic reduction even if it has never, to our knowledge, been the subject of a jurisprudential interpretation.

But this is not at all the reading put forward by the legislative power to justify a modification of the texts. The impact study prior to the discussion of the bill asserts, on the contrary, that the provisions on abortion do not apply to embryonic reduction. According to this document, the terms of Article L. 2212-1 of the Public Health Code¹⁵ do not correspond to the situation of embryonic reduction because "what is truly interrupted is the development of this (these) embryo(s) or this (these) foetus”. Following this logic, the impact study of the law nevertheless continues by estimating that the embryonic reductions are currently carried out in a “legal vacuum”. It considers that it is neither necessarily a termination of pregnancy for medical reasons within the meaning of Article L. 2213-1 of the Public Health Code nor, below twelve weeks of pregnancy, of an abortion when “the embryonic or fetal reduction concerns a woman who wishes to have a child” and that, “in addition, the pregnancy, strictly speaking, is not interrupted. What is truly interrupted is the development of this (these) embryo(s) or this (these) foetus”. The impact study draws the conclusion that “practitioners who carry out embryonic reductions therefore expose themselves to major litigation when they carry out such actions which also involve risks”. The study continues with this clarification: "Three types of procedure could be concerned: medical liability procedures either before the administrative court in the case of a public structure, or in civil proceedings, in the case of a private structure or the engagement of the personal responsibility of a doctor. In this hypothesis, the available data relate to actions for medical liability in general and it is impossible to distinguish between the generating facts and therefore to know whether embryonic reductions are in question. It could also be a criminal prosecution.” A risk which nevertheless seems highly improbable since we have not been able to find any trace of litigation on this question, whether on a civil, criminal or ethical level and since no case has been mentioned by the professionals interviewed during the parliamentary work.

The difference in the reading of the current state of the law is not without consequences: if we consider that embryo reduction is currently prohibited, then framing the practice before twelve weeks of pregnancy is indeed an opening rights for women. But if, conversely, the current law is read as encompassing embryonic reduction, then setting new conditions for the practice before twelve weeks of gestation actually operates a restriction of rights for women. And that is exactly what, in our view, emerges from the new so-called bioethics law.

Restriction of access to abortion…involuntary!

The mechanism envisaged by article 28 of the law examined subjects embryonic reduction, on the one hand, to specific medical conditions and, on the other hand, to a procedure similar to that of the medical termination of pregnancy. Thus, before twelve weeks of pregnancy, that is to say during the period when recourse to abortion is practiced, and in other cases, at the sole request of the pregnant woman, the legislator now submits access embryo reduction under medical conditions. The text provides that it can only be practiced when the continuation of the multiple pregnancy “endangers the health of the woman, the embryos or the fetuses”. These notions, which we can think that, as for the IMG, they will be interpreted widely by the medical teams, in particular with regard to the mental health of the women, are however stricter than for the IVG, accessible at the simple request of the pregnant woman, without her having to justify it. The new procedure also makes embryo reduction subject to the authorization of two doctors, after an advisory opinion from a multidisciplinary team from a CPDPN, as for the termination of pregnancy performed due to a fetal pathology. The composition of this team is adapted to the embryo reduction procedure since it is planned that the group can request "if necessary, the opinion of a doctor qualified in psychiatry or, failing that, of a psychologist" ¹⁶. In addition, the text provides that the characteristics of the embryos cannot be taken into account for the determination of which one or those will be eliminated, in particular with regard to their sex. This precision implies that when the embryonic reduction is motivated by a pathology of the fetus, and must therefore lead to a selection of the eliminated embryos, the procedure followed must be that of the IMG (which is in any case absolutely similar to that imagined for the ISG, apart from the required presence of a psychiatrist or psychologist).

Beyond 12 weeks of pregnancy, on the other hand, it was made clear on many occasions during parliamentary proceedings that the Government and Parliament understood the new system as authorizing embryonic reduction as soon as it was motivated by a danger to the health of the woman or by a risk of serious pathology affecting one or more foetuses. Secretary of State Adrien Taquet thus affirmed before the National Assembly, during the session of October 8, 2019: “The situation described by many of you under the formulation of “selective termination of pregnancy” – ISG –, at namely a multiple pregnancy with a high probability that one of the unborn children will be affected by a condition of particular gravity recognized as incurable at the time of diagnosis, does not come under the partial termination of pregnancy that we want to regulate . Indeed, this gesture, which puts an end to the development of the sick fetus, has no impact on the further development of the other fetus, which is unharmed. It is indeed subject to the rules in force relating to the IMG ".

To sum up, the new system for access to abortion would now distinguish between three situations instead of the two previously. First case: a pregnant woman of less than twelve weeks who wishes to completely terminate her pregnancy, regardless of the number of embryos she is carrying, can always do so without specific authorization and for whatever reason. Second case: a pregnant woman of less than twelve weeks wishes to partially terminate her pregnancy, regardless of the number of embryos she is carrying, and can only do so by invoking a risk for her state of health or that of the embryos and with the opinion of a multidisciplinary team and the agreement of two doctors. Third case: a pregnant woman of more than twelve weeks wishes to partially or totally terminate her pregnancy and she can only do so by justifying a "serious danger" to her health or a serious incurable pathology of one or more several fetuses.

The government, followed in this by the Parliament, succeeded in producing a text having a radically opposite effect to that which it claims to pursue! Indeed, both the impact study and all of the interventions by the government and the rapporteurs during parliamentary proceedings tend to affirm that the new procedure aims to protect the health of women and fetuses, which are endangered by multiple pregnancies. , but also to protect women and families against the psychosocial risks induced by multiple births (divorce, postpartum depression, financial insecurity, etc.)¹⁷. However, if the law explicitly introduced embryo reduction as a new case of access to abortion after twelve weeks of pregnancy, under less strict conditions which would not require proof of a pathology of the fetus, for example, it would fulfill this goal indeed. In fact, at the present time, if the development of the fetuses is endangered by multiple pregnancies, but none of them is, strictly speaking, affected by a pathology and the health of the pregnant woman is not in danger, the reduction theoretically cannot take place after twelve weeks. But by only explicitly providing for the reduction for pregnancies of less than twelve weeks, the law not only misses its goal but it goes against the stated objective! Whereas in the current state of the law a pregnant woman of less than twelve weeks who does not wish to have twins for social reasons can apply for embryo reduction, she will no longer be able to do so under the new system since she will have to justify related to his health or that of the embryos. Legislative tour de force therefore: while the only way to extend women's right to abortion was to liberalize embryonic reduction after twelve weeks, the law restricts it before twelve weeks...

The argument that the reform would have been essential because the previous law would not have been applicable to abortion is, in our opinion, absurd: in fact, the Government is contradicting itself in the development of the system since, for cases of embryo reduction performed beyond twelve weeks of pregnancy, it refers this practice to the device for medical termination of pregnancy (IMG). However, the texts providing for abortion use the same terms as those governing abortion: all provide that “the termination of pregnancy” can be performed for this or that reason. It is difficult to see how, for abortion, the expression "termination of pregnancy" would prevent the inclusion of embryonic reduction in abortion when it would not pose any difficulty in the context of abortion. .

The need to regulate embryonic reduction was further justified by the fact that this regulation was recommended by a CCNE opinion. The opinion in question, dated June 24, 1991, seems however difficult to transpose to the state of positive law since it is based on the provisions then in force regarding access to abortion. It stated as follows: “the possible application of the law of January 17, 1975 on the termination of pregnancy, to embryonic or fetal reduction, poses a legal problem that has not yet been resolved. Nevertheless, the Committee considers that embryonic reduction should not be justified except in the case of distress or therapeutic necessity. As for fetal reduction, its indication can only be strictly therapeutic”. If we refer to the state of the law at the time, in which "distress" referred to the procedure of abortion without medical indication, this report was therefore content to consider that embryonic reduction should follow the general regime. abortion – differentiated according to the advanced stage of gestation. Which is the exact opposite of the reading that the impact study seems to make of it. The only legislative change explicitly recommended at the time consisted, on the one hand, in providing for the expression of written consent or refusal by the patient and, on the other hand, in setting up a declaration system compulsory practice, which has nothing to do with the system proposed – and adopted – within the framework of the bioethics law.

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The final result of the text is all the more ridiculous in that there is perhaps something to frame the embryonic reduction or at least to discuss it: the legislator, in particular for health and ethical reasons (which are once again not the stated objectives), could thus have provided for a mechanism much less prejudicial to women's rights: provide for a special professional qualification to practice this act in order to guarantee, on the one hand, women's safety and, on the other hand, reduce the risks of completely eliminating pregnancy, simply affirm the prohibition of making a gendered choice of the fetus, possibly raise the question of the relevance of the return of compulsory social consultation for this particular procedure, which is more likely to be requested for social reasons than a simple abortion, etc. Instead, the new system governing embryonic reduction means that two women, at the same stage of their pregnancies, are not subject to the same conditions and the same procedures depending on whether they wish to totally or partially delete the embryos they 'they wear. A pregnant woman of less than twelve weeks who wishes to completely terminate her pregnancy, regardless of the number of embryos then eliminated (potentially several), can do so without any justification, whereas a woman who wishes, in the event of a multiple pregnancy, n eliminating that some of these embryos is forced to justify it with regard to their state of health or the developmental difficulties that the fetuses could encounter. Total paradox therefore in which a woman carrying a multiple pregnancy and who does not wish to continue it for extra-medical reasons such as financial problems, social difficulties or simply the absence of desire to conceive several children at this stage of her life , would find herself in the situation of having to abort completely when she could have wished to continue the gestation of one or two fetuses.

In its narrow focus on this issue, Family Planning thus underlined the extent to which this new provision undermined both the individual freedom of women and the principle of equality between them¹⁸. The Constitutional Council, which was not seized of this provision, did not rule, a priori, on its conformity with fundamental rights and freedoms¹⁹. Despite his usual reserve on so-called “societal” issues²⁰, it remains to be seen what his assessment of the system would be a posteriori.

1. Law n° 2021-1017 of August 2, 2021 relating to bioethics.2. V. National College of French Gynecologists and Obstetricians, Updates in Gynecology and Obstetrics, 10 Dec. 2010, A. Delabaere, D. Lemery, H. Laurichesse, B. Jacquetin and D. Gallot, Update on fetal therapies - Selective termination of pregnancy.3. Pt 1.1.9 under the analysis of art. 20 of the project. However, nothing prohibits this practice from taking place in any other healthcare structure, without a specific declaration distinguishing it from a total termination of pregnancy.4. Law no. 2001-588 of July 4. 2001 abolished the formulation inherited from the Veil law of 1975 according to which only women who were placed, as a result of it, in a “state of distress” were allowed to request the termination of their pregnancy. This abolition, with significant political significance since it affirmed access to abortion as a process of individual freedom and not as a concession granted to certain women, had no concrete effect on effective access. abortion, the Council of State having long held that women were the only judges of this famous “state of distress” (CE, ass., 31 Oct. 1980, No. 13028, Lebon).5. The condition is implicit in art. L. 2212-5 which states that the request must be “renewed” after an initial consultation. The interpretation of this text also results from the decision of Cons. const. Jan. 21, 2016, no. 2015-727 DC, Act to modernize our health system, considering. 43, AJDA 2016. 126; D. 2017. 318, ob. J.-P. Clavier, N. Martial-Braz and C. Zolynski; Constitutions 2016. 125, chron. X.Bioy .6. This consultation, guaranteed under the terms of art. L. 2212-4 CSP, by "a person who has completed qualifying training in marriage counseling or any other qualified person in an information, consultation or family counseling establishment, a family planning or education center, a social service or another approved body”, is still offered to women but remains compulsory only for minors. The parliamentary proceedings of the law of 11 Jan. 1975 explain the fact that this consultation was initially designed as a tool aimed at discouraging women from resorting to termination of pregnancy.7. Art. L. 2212-5 in its version prior to the law of 26 Jan. 2016: “If the woman renews, after the consultations provided for in articles L. 2212-3 and L. 2212-4, her request for termination of pregnancy, the doctor must ask him for written confirmation; he can only accept this confirmation after the expiry of a period of one week following the woman's first request, except in the case where the term of ten weeks might be exceeded, the doctor being the sole judge of the decision. timeliness of his decision. This confirmation can only take place after the expiry of a period of two days following the interview provided for in Article L. 2212-4, this period may be included in that of one week provided for above. »8. V. Annual report of the National Biomedicine Agency 2019 – medical and scientific report – Table CPDPN1.9. The hypotheses are multiple: cardiac or pulmonary risks, vascular risks, impossibility of starting a drug treatment (chemotherapy in particular) without damage to the foetus, etc. In 2019, they gave rise to more than two-thirds of the 343 favorable opinions issued (see ANBM Report, above, Table CPDPN10).10. Preconception psychiatric pathologies and those discovered during pregnancy as well as psychological distress in the context of a fetal anomaly accounted for 38 of the 343 favorable opinions issued in 2019 (ibid.).11. CSP, art. L. 22213-1, par. 1.12. ANBM report, prev.13. Ibid. : the ABM notes that, in 2018, "1,587 pregnancies were continued with a serious fetal pathology for which the CPDPN could have issued, if the women had requested it, a particularly serious certificate opening the possibility of a IMG”, the trend being an increase in these situations (see Tables CPDPN8 and 9).14. In the case where the request is presented because of the danger incurred by the woman, the team is at least composed of: a doctor qualified in gynecology-obstetrics, member of a multidisciplinary center for prenatal diagnosis, a specialist practitioner condition from which the woman suffers, a doctor chosen by the woman, a qualified person bound by professional secrecy who may be a social worker or a psychologist. When the request is submitted because of a fetal pathology, the team contacted is that of a multidisciplinary center for prenatal diagnosis (CPDPN). The pregnant woman can then request that a doctor of her choice be associated with the deliberation.15.“A pregnant woman who does not want to continue a pregnancy can ask a doctor or a midwife to terminate her pregnancy. This interruption can only be performed before the end of the twelfth week of pregnancy. Everyone has the right to be informed about abortion methods and to choose one freely. This information is the responsibility of all healthcare professionals within the scope of their skills and in compliance with the professional rules applicable to them. »16. The presence of a mental health professional raises the question: is it a question here of "controlling" the mental state of the pregnant woman, in a sort of pathologization of her request, or of ensuring psychological support in an often difficult process? In the second hypothesis, one could seriously question the relevance of making him a decision-making member of the team…17. The impact study thus states in pt 1.1.2 under art. 20: “The practice of embryo reduction also makes it possible to avoid the social and psychological complications associated with multiple pregnancies. Indeed, the divorce rate is very high among parents of triplets and postpartum depression is much more numerous. »18. Contributions available.19. cons. const. July 29 2021, no. 2021-821 DC, AJDA 2021.1658; D. 2021. 1547, obs. Const. .20. M. Altwegg-Boussac, « The “nature” of the “assessment of Parliament” according to the Constitutional Council: society, science, and so on”, La Revue des droits de l’homme [Online], 20 | 2021, posted July 13. 2021.