Is the fetus a person? The French Cour de cassation (Supreme Court) has just taken a step closer to saying, “yes”, though French bureaucracy is such that the line between “yes” and “no” will remain drawn unless the legislature decides otherwise. The French are very status conscious, and everyone has a civil and a professional one, even if it’s unemployed (and in some cases, if you don’t have the right status, you can’t get the job). Your first status, obviously, is being the child of someone: your parents go to the “civil status office” at the town hall (of the place you were born, not necessarily where they live) to declare your birth. The information is written in a huge ledger (all future civil status details—marriage, divorce, births of your own children, death—will be recorded on your page when they occur). You are also written into the list of children in your parent’s family record book (like the one at right), an official pamphlet given at marriage or birth of the first child that serves as proof of marriage, filiation and death, and your parents are given “receipts”—handwritten temporary birth certificates. In the future, whenever you need a copy of your birth certificate, you go, call or write to the town hall where you were born and they give you a photocopy of the original declaration signed by your parent(s) (usually the father, because the declaration has to be made within 3 days of birth and your mother is usually still in the hospital). But what happens if you are born “without life”: miscarried or stillborn? To recognize the grief of parents who miscarried or whose child was stillborn, the French administration allows declarations of children “born without life”. Prior to the Court’s ruling, if the fetus was viable according to World Health Organization standards—more than 500 grams (a little over a pound) or 22 weeks—the parents “could”, according to the article linked above, declare the birth. When our first child was stillborn at 6 ½ months, my husband and I were told that all births after 5 months “had” to be declared, but giving “it” a name was optional. However, “it” has no legal personality: inscribed in the official family record book as a child “born without life”, “it” may be buried, but never becomes the subject of a birth or death certificate.
Now, it turns out the viability criteria were not legislated, but contained in an administrative circular. So the Cour de cassation simply struck them, which theoretically means that a pregnancy ending in miscarriage early on or that must be terminated to preserve the health of the mother may result in declarations of “children without life”. Indeed, Parisian civil status offices have received requests for such declarations for therapeutic abortions. Needless to say, the anti-abortionists are very happy with the Court’s decision, as it comes close to granting personhood to fetuses. The legal community is confident, however, that the right to abortion is not threatened by the decision. For one thing, the Civil Code provides that declarations of birth (or birth without life) shall be made after accouchement (birth or delivery), which would seem to exclude early miscarriages and abortion, though the Code provides no definition. For another, unlike a birth certificate, a certificate of “child without life” confers no legal personality or civil status: despite getting included on the family’s list of children, the child without life is legally given only a first name, not a last name (I hadn’t realized this). Along with burial and parental leave, declaring the birth is essentially, therefore, a symbolic act. Moreover, when it was asked in 2001 to hold find a reckless driver who killed a pregnant woman guilty of 2 counts of manslaughter, the Cour de cassation said, “no”: the fetus has no legal personality. The ball is now in the legislature’s court, as the law on bioethics is scheduled to be updated in 2009.