A Realpolitik of Ethics. Behind the Specificity of the French ART System (1972–1994)

Current debates on assisted reproductive technology (ART) remind us that reproductive and ethical issues regarding human life raise perpetual questions, insofar as technological possibilities, dominant values, and power relations are in constant flux. In France, the recent process of revising the French lois de bioéthique (first passed in 1994) has propelled medically-assisted reproduction into the headlines again and shaken the historical pillars of the French ART system. ¹ The principles under review—restriction of access to married (or stable) heterosexual couples with diagnosed male sterility, ² free-of-payment, voluntary donation, and guaranteed anonymity of the donor ³ —originate from the half-century old network of infertility centers and gamete banks inspired by the non-profit blood banks and closely connected with public hospitals, namely the Centres d’étude et de conservation et du sperme humains (CECOS). ⁴ Much research in social sciences and humanities has been devoted to deconstructing this one-of-a-kind setting of moral values, ethical norms, and regulatory environment. ⁵ Recent scholarship has paid particular attention to ART (un)access for those without conventional medical indications (primarily single people and same-sex couples). ⁶ Sociologists, anthropologists and political scientists, often rooted in feminist and gender theories, have unveiled the inclusion/exclusion processes—driven by formal norms ⁷ and informal criteria—that determine “who can be helped” to have children and who cannot, a sort of variant of the classic “make live and let die” power. They have pointed out how French doctors, and at another level psychoanalysts, anthropologists, and ethicists, behave as “body guardians” or “gatekeepers”, ⁸ even though practitioners usually do not claim to be guardians of moral standards. From the 1990s onwards, due to the upsurge of new family forms and the growing influx of new profiles of ART applicants and recipients, countries such as the USA tended to consider “ability to pay” a sufficient proxy for parental “fitness”. ⁹ Instead, France remained attached to the former “adoption model” of family-building, based on the reference to natural reproduction, the father-mother “complementarity”, and the filter of psychoanalysis-based screening. Dominant French stakeholders proved particularly reluctant to recognize ART and parenthood as an unconditional “right” and never questioned the power practitioners had, ¹⁰ notably in establishing who is “medically” infertile and deserves adapted care.

Most scholars tend to interpret this French specificity by referring to overarching structures such as the Catholic culture, Republican familialism, or the system of medical norms. ¹¹ Taking a step back from these large-scale contexts, my paper develops a closer look at the genesis of sperm banks and the emergence of ART regulation. Drawing on the pioneering research of the sociologist Simone Bateman, ¹² who provided as early as in the 1990s an in-depth analysis of the CECOS’ system (compared to the other French sperm banks) associated with a powerful constructionist theoricization of ethics, I use historical materials and methods to understand how assisted reproduction entered the institutional architecture of the Republic. Mostly based on the CECOS Federation's archives, complemented by other medical collections, parliamentary sources, and some oral history, ¹³ my paper reintegrates ART provisions within their original context of practical concerns, professional constraints, and political issues. I pay close attention to the high degree of state involvement (through welfare, public services, public research, and population and family policies) ¹⁴ that characterizes contemporary France, along with the structural tension that exists between private and public medicine. ¹⁵ Indeed, in spite of the strong presence of private medicine in France and the absence of an entirely nationalized profession (unlike in the British case for instance), the national health system provides universal access to care and makes hospitals the core of medical intervention. ¹⁶ The centrality of public hospitals and their critical role in professional careers and scientific legitimacy, especially since Robert Debré's reforms of the 1960s’, appears a key element in understanding the French history of ART. ¹⁷ Nevertheless, private medicine has remained an important component of the field of human reproduction.

The 1970s and 1980s constitute a critical time sequence for the study of ethical regulation both “in the making” and in a relational way. Artificial insemination (AI) and artificial insemination by donor (AID), initially “semi-clandestine” practices to which no explicit formal regulations alluded, were becoming established, not through a single and consensual formula but through several competing systems. In this fluid environment, the game was more “open” than it would later become. No official guideline was developed, no “national path” predefined. The characteristics of individuals, direct social interplay, and contingent turns were crucial. How did one of the French sperm banking organizations, the CECOS, become the almost unavoidable route to AID and oocyte donation? Was it the spontaneous result of its superior “virtue”—–making it the best safeguard against objective ethical drifts—or the outcome of a “bioconservative” conquest of hegemony? As we will see, each banking system had to address not only external conservative forces but also competitors in the burgeoning field of ART. Within this complex interplay, sperm banking became the site of tensions concerning the social status of doctors, their place within the institutional landscape, and the social accountability of biomedicine.

A Breach in Moral Conservatism

In the last months of 1972, readers of the French press learned via a disclosed “leak” that a “sperm bank” had just opened in France. ¹⁸ Supported by a bold Parisian hospital administration, Prof. Georges David was “discretely” laying the foundations for a cryoconservation center at the Hôpital Bicêtre in southern Paris. A news magazine quoted Huxley's Brave New World. It evoked a potential “civilizational shift”. Might vast numbers of single women request AID? Would sperm banks pave the way to a “matriarchy” ¹⁹ ? Such symptoms of moral panic, revolving spontaneously around women, not around the children's status or condition, remind us that sperm banks thrived in the post-1968 context, against the backdrop of second-wave feminism and sexual liberation, the much-debated divorce reform, and the even more sensitive subject of abortion legalization. ²⁰

The Bicêtre initiative was not unique. Concomitantly, another undertaking had developed at the Hôpital Necker, under the responsibility of Prof. Albert Netter. A few months later, in Marseille, Dr Sacha Geller would inaugurate a freezing/storage facility in his Centre d’exploration fonctionnelle et de recherche en hormonologie (CEFER). These three doctors did not seek to attract media attention—at least not so soon. AI and AID were not radically new in France but were seldom discussed and publicized. Prior to the late 1960s, French practitioners only rarely resorted to the ethically and scientifically controversial practice of artificial insemination. ²¹ Some private gynecologists, facing patients in great emotional pain or who were particularly insistent, accepted inconspicuous arrangements, using the husband's, or more rarely a donor's, sperm. ²² In the latter case, they solicited paid semen providers (mostly medical students) who had to do their “job” in situ, usually in a room next to the doctor's office where the woman was ready to be inseminated. Even a few hospital and clinic practitioners, some of whom were prominent professors (Jean Dalsace, Jean Ravina, Raoul Palmer, Jean Cohen), would also make incursions into this gray zone of homologous insemination and, in some cases of azoospermia, to the even more controversial procedure of heterologous (ie with donor's sperm) fertilization. Their claimed motivation was to draw couples away from unskilled or disreputable practitioners, or to spare them from going abroad, as a number of French patients nevertheless did in the late 1960s, notably to seek out Prof. Schoysman's clinic in Brussels. ²³ Once the infertility consultation had firmly diagnosed incurable male sterility, and provided that the couples were not deemed “unfit” for childrearing, these clinicians informally solicited donors, usually among a pool of medical students or blood donors. Fertilization with fresh semen was then attempted in private office.

Religious and moral authorities, that is the Churches and conservative institutions such as the Académie des sciences morales et politiques, as well as the still predominantly Catholic medical elite, were hostile to this procedure but this is not the only reason why French physicians were reluctant to incorporate AI/D as a routine intervention. This absence of enthusiasm stemmed primarily from the doctors’ doubts that the technique was sufficiently efficient and suitable, along with their spontaneous preference for child adoption. It is worth noting that one of the most detailed surveys on AI/D was conducted in 1967, the year contraception was legalized. ²⁴ The decreasing number of abandoned and “available” children was certainly not yet a major issue, but this franker and more open approach to the whole range of infertility options was not a coincidence.

A path to the aggiornamento of medical customs had been cleared by a number of liberal-minded medical dignitaries—mostly gynecologists—and life reformers who considered that the rationalization and secularization of morals (according to a sens de l’histoire) was reaching a new threshold. ²⁵ In 1972, the contraception campaigner and Freemason Pierre Simon, along with the services of the Ministry of Health, wrote the blueprint for an ambitious experimental center that, he hoped, would allow the implementation of the WHO's recommendations on infertility care. ²⁶ Raoul Palmer, who had concluded his 1967 survey discussion by prophesizing the imminent end of the “traditional method” of AID, ²⁷ was part of the same networks. As for the infertility specialist Jean Dalsace, it is probably because he was retired that he did not venture into sperm banking. He had lamented several times that selecting the donor's phenotypical features was so difficult and he found it abhorrent to “know the name of the donor”: this position generated a rationale in favor of sperm repositories derived from the blood bank model. ²⁸ Storage devices offered more efficiency and a wider range of matching possibilities, and introduced an intermediary structure between donors and recipients. ²⁹

At the turn of the 1970s, for some pioneers in reproductive medicine and biology, the time had come to give AID a real place, to wind up informality, taboo, and stigma, and to make it a fully accepted medical activity. They were both aware of the experiments carried out in Belgium and Denmark and driven by the accelerating biomedicalization of human fertility, fostered by the cryoconservation boom in bovine breeding and successful research in animal semen biology and freezing at the Institut national de la recherche agronomique. The increasing importance of biologists and biological medicine, especially in hormonology, with regard to clinical specialisms is embodied by the flourishing of massive laboratories such as the Fondation de recherche en hormonologie (FRH) headed by Dr Robert Scholler. ³⁰

To bypass the constraints of case-by-case fresh AID, the sperm-banking entrepreneurs had to cope not only with technological, legal, and professional challenges. They had to build a socio-technical formula that would provide their practice with acceptability. With various stakeholders and several types of solutions, the birth of French sperm banks was ultimately a conflictual process, with long-lasting sequelae on the ART overall framework. In 1973, the doctor portrayed by a newsmagazine as “the boss” of AI was Albert Netter. ³¹ He was a prominent medical gynecologist and endocrinologist (appointed as the scientific counselor of the FRH) with particular interest in amenorrhoea and contraception. Trained in performing infertility diagnoses, ³² he had created a bank at the Hôpital Necker ³³ with Dr Michel Jondet, his ex-student and the son of the veterinarian Robert Jondet, a respected expert in frozen animal semen. In Marseille, Dr Geller was taking a similar approach to Netter's. Geller had teamed up with the gynecologist Roland Dajoux and the biologist Cécilia Lemasson. Like Jondet, Dajoux and Lemasson had visited Lebech's in Copenhagen and Schoysman's in Brussels to observe how they ran their banks. They used these experimental banks as models based on both their technical efficiency and moral neutrality.

The path taken by Georges David contrasts with the strong continuity that guided Netter and Geller from medical gynecology and female endocrine disorders to the exploration of assisted reproduction. David's impulse to bring AID from opacity into “broad daylight” rested on a succession of impromptu experiences and accidental shifts. As a medical student in the 50s, he had been immersed in the area of blood transfusion for hemolytic disease of the newborn. Around 1965, advised by his mentor Prof. Maurice Lacomme, he had undertaken fundamental research, assuming that human sterility may stem from an analogous mechanism of antibody incompatibility. After hematology, his main specialism—which he taught as a professor in biology and practiced as chef de service—he had moved towards histology, embryology, and cytogenetics, with a focus on semen biology. Receiving infertile couples sent by Parisian gynecologists in his Faculty laboratory, he concluded through sperm examinations that many reproductive incapacities were induced not by antibodies but by sperm abnormalities. ³⁴ He also realized the intensity of the couples’ pain and the abuse suffered through backyard medical practices, confirmed by several testimonies. ³⁵

In order to clean up AID and have it officially recognized, David wove a doctrine much more demanding than the European experiments taken as models by Netter and Geller: he undertook what has been coined an ethical experiment. ³⁶ In 1969, as a consequence of his rank at the medical concours (competitive entrance exam), he was assigned to the peripheral hospital of Kremlin-Bicêtre, a former asylum and now a geriatric unit with no reproduction-related activity. David converted the modest position of his lab and his own limited academic status (he did not possess the prestigious title of former medical intern ³⁷ ) into an opportunity to develop his project freely. His legalistic tendencies, his concern that the heated abortion debate was liable to harm innovation and poison ethical discussion, and his—inflated?—perception of the latent hostility to AID drove him to choose a very specific line of action: a step-by-step, and especially state-supported strategy. ³⁸

An era of Multiple AID Providers

Around 1975, differences between the three sperm-bank operators could appear as relatively mild, notably since nobody of them claimed norm-breaking or revolutionary principles. ³⁹ So why did these banking systems rapidly collide?

What Did Differences Lay On?

For David, Netter and Geller alike, AID was a male infertility remedy, certainly not a new way to make children for any kind of intended parents. Secrecy and anonymity were undiscussed, self-evident premises. “Social” indications, such as insemination for single women, were hardly a topic of discussion. What is more, they all felt it necessary to confer an axiological justification upon cryonservation and non-husband insemination, in other words to provide these unusual activities with “respectability”. ⁴⁰ One shared argument was that AID was an expression of conjugal love and a medical tool for converting pain into happiness; it would in no way be used to “manipulate life” for dubious purposes. Retracing the steps of his own conversion to AID, from hostility to doubt and doubt to acceptance, Netter made the case that doctors, whatever their personal opinions, could no longer remain deaf to patients’ demands for an alternative to adoption. ⁴¹

The outlines of David's credo, revealed as early as October 1972, ⁴² were formalized as a chart for Bicêtre's CECOS and then became the backbone of the protocol for private gynecologists using CECOS semen samples. Both his Catholic background and his fear of a religious bridging explain David's attempt to “ennoble” (as Irène Théry wrote) AID. In the face of societal change, medical customs and norms should adapt, but without going too fast, and certainly not without official support. David's rhetoric of “gift”, directly traced from blood donation and underpinned with the help of modernist religious consultants, ⁴³ went hand-in-glove with his rejection of any monetary compensation, which he refused to dissociate from commodification or market-based relations. Referring to practices in Brussels and Copenhagen, Netter and Geller chose to compensate (or defray) sperm donation, without terming it remuneration or contesting the free-of-payment philosophy. However, this minimal money transaction ⁴⁴ was, at the very start, the main disagreement between David and them. Another divergence was that the CECOS, in order to preserve mainstream family values and to neutralize the “adultery” objection, designed donation as a couple-to-couple gift. It is likely that the application letters sent by unmarried donor candidates when the Bicêtre bank was first launched strengthened David's convictions: these unsolicited candidates, who had a very basic (if not vulgar), androcentric and self-centred view of sperm donation, were the opposite of what David imagined in his project to symbolically elevate AID. ⁴⁵

It might nonetheless be misleading and anachronistic to overestimate these initial divergences, and to analyse only in “ethical” terms a combination of morals and mores, ethics and ethos, normative behaviors and styles of thinking. A synthesis of his own mixed profile—partly a clinician, partly an experimentalist, but also a doctor with a deep-seated belief in social medicine—Georges David's credo lay on a biomedical modernism and a bet on interdisciplinarity. Based on laboratory work, CECOS centers brought together an extended range of medical specialisms and even resorted to humanities to treat all the aspects a doctor and a couple could not resolve by themselves. Moreover, it was not separable from David's deep faith in public service and universal access to care, with explicit, transparent, non-negotiable rules. Netter and Geller's “framework”, on the contrary, referred to the private doctor's moral code, which they considered the only valuable and acceptable safeguard against all potential abuse. What was avant-garde in their conception was—unlike David—the abandonment of medical paternalism ⁴⁶ : as their interwar American forerunners (Koerner, Seymour, Guttmacher) might have stated, and somehow as young liberal gynecologists would argue about contraception or abortion, a doctor should remain a neutral, judgement-free service provider, ⁴⁷ whose only duty is beneficence. ⁴⁸ David, for his part, conceived his own liability and the consequences of his acts on the scale of the whole of society. Thus, his strategy could not be confined to the medical field. After being granted the tacit support of the Paris hospitals trust (Assistance publique-Hôpitaux de Paris) ⁴⁹ in as early as 1972, he was determined to obtain the support of the state itself, so that he could be confident that no obstacle would be put in his way. Only under these circumstances could the CECOS “experiment” be rolled out and duly assessed. In the longer term, David hoped, the government should “take an explicit stance on AID”. ⁵⁰

Knocking at government doors resulted in an under-publicized but steady and efficient circuit of discussions that brought together CECOS representatives and a handful of state decision-makers. The Health Minister, Simone Veil, immediately became an indefectible ally. Although not verbatim, the archive records of these round tables witness the affinity between the latter, the representatives of the ministerial directions centrales and Georges David. All were reformists in the double meaning of the word: they pushed for change, but through compromise and legalism. ⁵¹ Veil, who faced violent political hostility in her struggle for abortion rights, did not want to embrace an additional hot topic. ⁵² She shared David's wish that the CECOS experiment remained as quiet as possible until it underwent a rigorous assessment. Reading between the lines, another major fear can be discerned: that of triggering political and parliamentary debate. ⁵³ Putting AID in the democratic forum would not only provoke a conservative backlash, it might also encourage feminist claims and potentially give single women the opportunity to ask for the right to motherhood.

Simone Veil suggested that, in its probationary phase, the CECOS site at Bicêtre—and, from 1974, the numerous CECOS sites created at provincial university medical centers—should retain a non-profit status (association under the Law of 1901), rather than seek formal attachment with the public hospital sector. This option allowed governance to remain in the hands of the association's directorate (conseil d’administration) and released hospital authorities from any liability. The composition of the directorate had to offer the best possible protection against hypothetical criticisms. To this end, Georges David played a precious card he had inherited from his medical student years. ⁵⁴ The revered pediatrician, social hygienist, and hospital reformer Robert Debré, who embodied the French biomedical and hospitalo-universitaire establishment, was appointed Honorary Chairman, bringing with him his symbolic capital of medical and moral authority. ⁵⁵ Ex-officio representatives of CECOS Paris’ institutional environment (ministerial directorates, APHP, provincial teaching hospitals, French Order of Physicians) provided the organization with the legitimacy of a “parapublic” body. As a token of pluralism, two Catholic and notoriously anti-AI physicians, Drs Monsaingeon and Monod-Broca, sat on the directorate. ⁵⁶

This co-option strategy illustrates the “controlled openness” that characterizes David's cautious way to adapt to societal change. A decade before the Comité national d’éthique was established, the CECOS initiated this way of regulating life technologies by entrusting problem solving and decision-making to pluralistic but elitist “committees” (commissions) of “wise” people. By embracing experts, religious leaders, and moral thinkers—rather than political parties or social movements—these committees objectivized the preference for areopagus rather than agora. Nevertheless, the CECOS’ cleverness was in promoting discussion and collegial practices, especially about issues that could not be resolved by the practitioner's own conscience: unconventional requests, or screening and selection possibilities that touched on the uncertain borderlines between medical genetics and eugenics.

David's organization, therefore, was much more than a symbolic package of “values” or an “ethical construct” regarding the body, sexuality, parenthood, or the doctor-patient relationship. It was a comprehensive and integrated system—an economy in the early-modern meaning of the word—embracing every side of this biomedical activity, anticipating every potential obstacle. David placed AI/D and sperm banking at the core of a sophisticated disciplinary architecture combining reproductive biology, epidemiology, and public health, with frequent references to philosophy, psychology, anthropology, sociology, theology. Of great significance is the centrality of statistics in this design. A member of the CECOS directorate was the researcher at the Institut national de la santé et de la recherche médicale, the introducer of modern quantitative epidemiology in France, and Robert Debré's nephew Daniel Schwartz, ⁵⁷ whose work was of primary importance for the CECOS research, assessment, macro-scale organization, and resources management. ⁵⁸ Letters sent by infertility doctors and gynecologists who asked to become CECOS partners ⁵⁹ suggest that the nature of this economy, although inseparable from David's charisma and affability, received positive feedback from professionals. ⁶⁰

The David/Veil partnership led to a first major outcome: the granting of subsidies to facilities for their running expenses. As early as 1975, Simone Veil, who had the double responsibility of Public Health and Social Security, also believed that the national health insurance system (assurance maladie) should urgently provide infertile households with full coverage for diagnoses and treatments. ⁶¹ She received letters from couples who could not afford semen samples ⁶² and she examined several juridical options to overcome this financial issue, despite some ministers’ refusal to spend money on such a marginal condition. ⁶³ In 1978, she subtly inserted AI into a bill (projet de loi) on mother-and-child protection, which became a law. ⁶⁴ Since it was placed under the umbrella of insurance issues, no detail alluded to semen banking and gamete donation, but there was no ambiguity. The exclusively therapeutic indications of medically assisted reproduction were tacitly enshrined, although there was growing debate concerning the scope of AID.

Rising Tensions, Dampened Conflicts

Public funding was an (inconspicuous) recognition of AI/D, but it did not resolve the uncertainties and differences of opinion about how to organize sperm donation. It was particularly crucial to decide to what extent formal norms were necessary to make this activity safe for the doctor, the child, the parents, and the donor, and whether several AI/D circuits should exist or just one.

Doctors and juridical experts complained about a “legal vacuum”, that required the provision of the child-to-be with a legal status, to prevent them from non-paternity suits. ⁶⁵ But for Georges David solving this matter of filiation law was not enough: every philosophical option involved in the AID process and access conditions should be codified. Although he used to say that he never had any “monopolistic” agenda, ⁶⁶ he triggered a process that would potentially enforce CECOS norms across the whole assisted-reproduction offer. The conflict that led from the CECOS’ internal rules to the setting of external rules (with the lois de bioéthique) has been written about through the prism of ethical controversies and judicial cases. Such accounts tend to neglect what was behind the sperm-bank contest, starting with a struggle surrounding a scarce resource. The low number of donors—while the decrease in the adoption offer probably stimulated AID demand—made semen shortage a chronic issue. ⁶⁷ Right from the launch of the Bicêtre CECOS, David had to inform many couples and colleagues that his bank could not satisfy a demand that exceeded supply. ⁶⁸ In 1985, only 600 men gave their semen. Around 3000 donors were needed. The waiting list soon emerged as the CECOS’ Achilles heel. ⁶⁹ Minister Veil, along with the wife of then President Giscard d’Estaing, were sent supplications from people for whom the obstacle course to obtaining AID was so difficult that they begged them to convince the CECOS to consider their case. ⁷⁰ This imbalance, aggravated by non-payment and “couple-to-couple” donation, affected every part of the AID economy.

This concerning issue led to set up a consultation circle bringing CECOS leaders and civil servants together, who met from March 1976 to October 1977. ⁷¹ Officially, this working group was supervised by the Directeur général de la santé. Actually, David immediately took the lead. His overall “framing” of the AID-related issues proved even more consensual than the CECOS principles as such. Aligned with what Pierre Bourdieu coined “state thinking” (pensée d’État), ⁷² David's suggestions and requests were in perfect harmony with the inclinations of the hauts fonctionnaires (state administrators): he spoke their language and shared a similar conception of “modernization”. An apostle of the Republican service public, who had deliberately waived a private GP career, David had internalized a bureaucratic rationality that enabled him to envision assisted reproduction at a macro scale, in terms of time (planning) and space (mapping). This was a major asset compared to David's competitors, who framed the issue as, basically, a problem of medical interaction and demand-flow adjustment. Since the CECOS benefited from state subsidies, and in anticipation of social refunding, David was aware that his credibility also depended on budgetary considerations, at a time when administrators were experimenting with the move towards “expense-optimization” and “cost-benefit analysis”, ⁷³ implementing new instruments to govern “medical demography”.

David also insisted that managing the supply issue required sound coordination within the CECOS network ⁷⁴ : CECOS banks had to be regulated both in number and in localization. Such macro-management would not only facilitate the exchange of semen samples and ease statistical harmonization, it would also prevent applicants from having tries at other centers if turned down by their local one—another type of “consumer” behavior incompatible with the CECOS values. Little by little, the idea of introducing some réglementation ⁷⁵ to the whole French sperm banking offer arose. The claimed purpose was twofold: firstly, to establish, in official terms, the conditions that CECOS centers had to respect, and secondly, to avoid the “wild dissemination” (“prolifération sauvage”) of sperm banks in general. ⁷⁶ David dealt with banks, not “traditional” AID. He deemed it illusory to regulate private and infralegal practices, a belief shared by the DGS’ juridical expert. ⁷⁷ Although he was eager to “sanitize” AID, and aware that the informal sector probably captured a number of potential donors, the CECOS patron thought it too ambitious and was convinced that coercive laws would fuel the black market instead of blocking it. De facto, informal AID survived until the 80s at least ⁷⁸ and even some regular partners of CECOS resorted to both systems, depending on their needs. ⁷⁹ Nor did David allude to the Hôpital Necker. In the mid-70s, a peaceful coexistence reigned between Bicêtre's CECOS and Necker's “spermiothèque”. ⁸⁰ Netter was as legitimate as David in the field. In addition, he had retired in 1975 and his successor Prof. Mauvais-Jarvis, who also attended the working group, intended to join the CECOS system. ⁸¹

The expression of “wild dissemination” was actually aimed at Sacha Geller. Unlike the Parisian setting, where the Necker and Bicêtre sperm banks had been established concomitantly, the development of Geller and Dajoux's cryoconservation facility in Marseille occurred where a CECOS site already existed. ⁸² Geller, who was fond of conversation and disputatio, had promoted his activity in public debates in Marseille. Nevertheless, he was careful not to offend David. In April 1977, informed by “the newspapers” that the Marseille CECOS was facing a lack of donors, he invited David to a fair and friendly exchange of views. ⁸³ The way in which the CEFER operated was not—Geller admitted—as “ethically demanding” as the CECOS, but the acceptance of unmarried donors and the fact they were paid for donating made it evidently more efficient. Theorizing a “three D” policy—“de-mystify” (AID is a low-tech procedure), “de-dramatize” (non-husband sperm is just a “biological prosthesis”), and “decentralize” ⁸⁴ —he also contested the relevance of national planning/mapping. Rather than a peak technology requiring a hospital environment and geographic concentration of resources, he considered sperm banking a light and flexible device that allowed reactivity.

The open and peaceable conversation did not occur. Despite his leitmotiv that the CEFER was nothing more than a “complementary” bank, ⁸⁵ Geller soon conceded that he was carrying on a “fair and fruitful”, but determined, joust: that of private practice vs public sector. ⁸⁶ He and Dajoux, though reputed physicians, had both been kept out of university hospital circles. As medical students (respectively in the 1940s and 1960s) with Jewish origins, they had faced prejudices and their route to the agrégation had plausibly been blocked by discrimination. ⁸⁷ Geller, who benefited from a remarkable reputation in endocrinology and contraception—notably working with Scholler at the FRH—had never concealed his desire for “revenge”. ⁸⁸ In a 1977 paper ⁸⁹ that contrasted the CECOS Marseille bank's difficulties with the “success” of the CEFER, with its “74 babies” born in three years, ⁹⁰ Geller proudly presented his bank as a flourishing organization. His patients came not only from the south-east of France, but from every corner of the country. A CEFER branch was to open in Montpellier and a further one was announced in Nice. ⁹¹ When, in 1980, André Mattei, the head of CECOS Marseille, told David of his anger at seeing the CEFER distributing leaflets to the gynecologists of Marseille, the accusation of unfair competition was implicit behind allusions to ethical laxity.

Make new laws or build an institutionalized space for professional reflection? Set up a complicated and fussy framework or simply formulate general guidelines? The working group's hesitations foreshadowed the dilemmas addressed until the making of the lois de bioéthique. The discussion soon focused on the concept of “rules” (réglementation), which could involve a range of possibilities. ⁹² Here again, various options were put on the table. One was to sectorize sperm banking facilities on a national scale (based on the idea of a carte sanitaire—health service map), in order to prevent the establishment of new banks where demography and estimated male infertility did not justify an extended offer. ⁹³ Others were to define a blood transfusion-like list of health safety criteria, or to create an official status for sperm banks, with compulsory state approval (agrément) for anyone wanting to run a facility. In any case, it was necessary to decide whether the CECOS system should be taken as standard, potentially resulting in the elimination of any other model.

In a memo on the “agrément des banques de sperme”, ⁹⁴ David not only perceived state approval as a preliminary health and safety check, he recommended that the banks were “functionally linked” to a CHU-based insemination provider—or, in case of non-hospital insemination, that the conditions of use and indications were strictly controlled. Even better than only placing the banks into a hospital environment was to incorporate them into infertility units connected with reproductive biology and cytogenetics labs, thus ensuring that AID would remain a response to medical infertility. Even though the direction de la Santé was supportive of these recommendations, its legal expert expressed some caveats. ⁹⁵ Be it justified or not, she said, the CECOS operated based on the doctor's ability to choose, accept or dismiss donors and recipients, making CECOS staff medical gatekeepers. Soliciting the involvement of public authorities through approval procedures would involve imposing the CECOS principles on all operators: de facto or de jure, this would likely produce a debatable monopoly and raise complex issues if outsider sperm banks ever broke the rules. In the end of 1977, nothing was decided, except that going through the regulatory route was politically less slippery than to legislate. But this restricted and quiet political process ⁹⁶ was struck by a much more punchy initiative that came from Parliament.

Public Controversy and Ethical Polarization

The Politicization of AID

In the winter of 1978, a bill was tabled by two senators, Henri Caillavet and Jean Mézard, with the explicit ambition to “make AI a means of procreation” (“tendant à faire de l’insémination artificielle un moyen de procréation”). ⁹⁷ Caillavet, notoriously a Freemason, had backed Simone Veil's 1974 abortion law and carried reform bills on organ donation, homosexuality decriminalization ⁹⁸ and on a right to die. Mézard, a member of the commission des affaires sociales (standing committee on social affairs), spearheaded the amendment that made “AI” explicit in Veil's 1978 law. Drafted in the last months of 1977, ⁹⁹ their bold proposal did more than just fill the so-called “legal vacuum”. Its authors flew the flag for “progressive liberalism” and “tolerance”. ¹⁰⁰

The draft had been prepared by a committee, the composition of which did not break with controlled openness. It emanated from Caillavet's senatorial “Association des Libertés” and was composed of many doctors, an ecumenical sample of clergymen, and some law and medico-legal experts. Very few feminist activists ¹⁰¹ or members of civil society had attended this committee. The text—which looks quite rushed—was an awkward attempt to reconcile the divergent points of view. It undoubtedly consecrated some of the ideas of Georges David, who co-headed the committee, such as non-payment and a Malthusian approach to frozen sperm supply, with the setting of quotas. On the other hand, the CEFER was explicitly recognized as a respectable experiment and, above all, the bill broke strong taboos in stepping outside the straightjacket of medical infertility: neither the insemination of unwed women nor post-mortem fertilization was banned.

Confirming David and Veil's fears, the bill induced a public debate ¹⁰² and resulted in the outpouring of previously underlying tensions. Whereas the CECOS disapproved the insertion of non-medical indications, Netter, pointing out that every legal provision was accompanied by regulatory measures with heavy penalties, ¹⁰³ blamed a “coercive, repressive, monopolistic, narrow-minded, and dictatorial” text ¹⁰⁴ and Geller declared the bill was paving the way for “state banks” ¹⁰⁵ instead of leaving sperm storage in the hands of private (though non-profit) organizations. ¹⁰⁶ The legislator, Geller added, might have let single women have access to AID, regardless of their sexual orientation. ¹⁰⁷ Thinking that the text attempted to “set traps for CECOS’ competitors” ¹⁰⁸ in requiring a state approval that was tailored to the CECOS, Geller and Netter suspected that David was its instigator. ¹⁰⁹ Given the profiles of Caillavet and Mézard, and knowing that Pierre Simon had been solicited, ¹¹⁰ one can presume that the senators actually had more connections with the network of liberal life-reformers than with the CECOS circle.

After the widely attacked bill was sent back to the Senate, a new round of hearings ¹¹¹ gave voice to Geller, Netter, and Jondet, and to the feminist and pro-choice lawyer Gisèle Halimi. ¹¹² David's influence was weakened in Parliament but after a series of national scientific meetings which addressed and assessed the CECOS experiment, and moreover in organizing the first international symposium on AI and sperm banking, ¹¹³ again with Minister Veil's backing, ¹¹⁴ the CECOS patron was now consecrated as the pope of AI in France. ¹¹⁵ He featured in a subgroup at the Académie de médecine, headed by the obstetrician Robert Merger, which recommended that the monopoly of approved sperm banks (centres agréés) was protected by a statutory law and presented the CECOS as the “best example” and the surest safeguard against “commodification”. ¹¹⁶

Apologizing for their overly “ambitious” and severely “regulatory” (réglementariste) initial text, ¹¹⁷ Caillavet and Mézard issued a revised version, less subversively entitled “proposition de loi relative à l’insemination artificielle des êtres humains” (“bill about human AI”). The new version excluded single women and widows, ¹¹⁸ but Geller's point of view had been substantially reinforced. ¹¹⁹ The new senatorial report pointed out the artificiality of the dichotomy between “public” centers and “private” but non-profit centers, along with the false opposition between “non-paid donor” and “monetary compensation”. To reconcile ethics and efficiency, it was proposed that donation could be compensated (indemnisée) and in its annex, the report featured a 1979 Council of Europe draft recommendation on human artificial insemination which said that “travelling and other expenses (…) may be refunded to the donor”. Lastly, a “monopoly” of any kind had to be banned and the new text stated that approval only concerned doctors, not centers. Whereas the deputies eventually rejected the bill, the Cavaillet-Mézard initiative had propelled AI/D into the media sphere and doubtlessly exacerbated the “ethical war”.

Towards a CECOS-Centric Standardization

Although no “wild dissemination” of sperm banks really occurred, the legal status quo perpetuated a market dualism: in 1985, 10% of donor inseminations did not involve the CECOS network. ¹²⁰ Notwithstanding the fact that some private gynecologists were still using fresh semen, those fertilizations outside the CECOS network were performed either through the CEFER ¹²¹ or the FRH, where a bank and insemination unit had been opened by Dr Jondet after Necker's bank had joined the CECOS network. ¹²² Throughout the 1980s, the gap between the strategies of the CECOS network and the other banks (especially the CEFER) grew continuously. The CECOS banks pursued their quest for officialization and their efforts to obtain an unnamed monopoly. Conversely, the CEFER team waived the quest for consensus, even more so as Geller's repeated attempts at bringing David to a public and direct confrontation were in vain. The latter had more reasons than ever to avoid public arenas and systematically refuse “polemics”. ¹²³ From the early 1980s, Geller was then forced to play a “maverick” role, making more and more iconoclastic statements intended to reveal the retrograde tendencies of the CECOS (and of mainstream ethicists and the public authorities). Not enjoying the same national media exposure, he was often reduced to the demeaning task of defending the CEFER readers’ letters to the editor in the newspapers. ¹²⁴ This asymmetry definitively anchored a “them-against-us” reading of the conflict in the minds of Geller and Dajoux—and Netter and Jondet. The CECOS doctors were irreversibly seen as arrogant hospitalo-universitaires who disdained vulgar private practitioners; an interpretation with obvious “Paris vs Marseille” undertones. ¹²⁵

While the creation of the Comité consultation national d’éthique (of which David was a member) and expanding worries about a growing “marketization” of ART (with the upsurge of the In Vitro Fertilization sector that boosted requests, including unconventional ones) converged with the CECOS’ aspiration for stricter state control, ¹²⁶ Geller and his collaborators seized the opportunity of certain well-publicized requests to attempt to shift moral boundaries and push forward the values of liberal individualism. These public controversies, such as the “Parpalaix case”, ¹²⁷ are not only textbook-cases of ethical dissent: they were battlegrounds and pretexts for the sperm banks’ rivalry, and affected adversaries’ perceptions of each other as well as the supporting networks. The CECOS camp could argue that their fears were being confirmed, while the CEFER team could denounce “ethical” stances as a “shield the society waves to limit medical progress”. ¹²⁸ The surrogate fertilization case led to Geller's last stand. In 1984 the CEFER patron created a third association (Alma Mater) to ease the cooperation of two other charities, Sainte Sarah (infertile couples) and Les Cigognes (biological mothers). ¹²⁹ This flirtation with boundaries caused fresh public scandal, despite Geller's careful preparation of his legal arguments and the support of several prominent figures including Caillavet, Pierre Simon, ¹³⁰ the famous pediatrician Prof. Minkowski, the IVF star Prof. Émile Papiernik and, last but not least, the socialist Minister of Justice Robert Badinter. ¹³¹ The case led the Conseil de l’Ordre des médecins to take the position that a doctor is not “the blind performer of any request” and to add its voice to the choir of those pleading for ethical regulations. ¹³² After Alma Mater was banned in 1988, ¹³³ Geller retired and the CEFER was closed. ¹³⁴ As a result, in many official papers from these years, “sperm banks” and “CECOS” had almost become synonymous. ¹³⁵ Less newsworthy, the standardization of French sperm banks involved the area of administrative negotiations and bureaucratic procedures. It is noticeable that the CECOS no longer benefited from a privileged and exclusive relationship with national health administrators. ¹³⁶ Not only because of Simone Veil's departure from the government, ¹³⁷ but also due to the IVF boom, which had led to a proliferation of new ART operators (about 300 “ART centres” in the mid-1980s), many of which private companies. This dramatic change in the biomedical landscape meant new professional and economic interests and blured the borders between clinical and biological activites, labs and care facilities, private and public structures. Paid-for semen, a black market, the anarchic dissemination of AID centers, loss of centrally coordinated control over indications, insufficient health safety (including HIV/AIDS) and genetic security (consanguinity): two decades after Georges David's first experiments, all the things the CECOS had always stood against seemed to be back on the agenda.

The direction de la Santé thought regulation could not be postponed anymore and, once again, seized administrative tools—through the principle of a license (agrément) —in spite of the absence of a perfectly suitable legal basis. ¹³⁸ Paradoxically, this did not benefit the CECOS. When the Minister Michèle Barzach, in April 1988, signed decrees that governed ART facilities, the requirements proved so draconian that, out of the 300 applicant ART centers, the specially-formed medical and biological committee only deemed 74 of them technically compliant. The CECOS, due to their private status (except for 4 centers over 20), did not feature in the list of approved centers ¹³⁹ and they had no other choice than accepting a full (i.e., not only functional) attachment (intégration) to public hospitals. The Federation had long seen this option as a relevant means for harmonizing the governance of centers, ¹⁴⁰ but the way it was imposed was perceived as blackmailing ¹⁴¹ and led to difficult and long-lasting negotiations. ¹⁴² Before this was achieved, which took years, the CECOS found itself obliged to make an arrangement with the social security authorities to bypass the lack of agrément. ¹⁴³ And ironically, non-CECOS cryobanks enjoyed the benefits of this procedure. The FRH's sperm bank had obtained the license and prospered until the dissolution of the foundation in 1997. Above all, the specter of “wild” operators came back. The Barzach decrees were based on a distinction between clinical (examinations and fertilizations) and biological (gamete collecting, preparation, and storage) activities, nevertheless they did not differentiate AI/D and IVF, nor intraconjugal and donor procedures. ¹⁴⁴ Their wording was pointed out by the Comité d’éthique as too vague to prevent commercial medical testing laboratories from developing a “sperm market”. ¹⁴⁵ In the context of the HIV/AIDS epidemic, the CECOS communicated about their strict quality control, which an unregulated market could weaken, and even traditional AID was now called into question. In September 1991, on a TV show, the head of CECOS Reims denounced a private company created in Marseille by a biologist and a gynecologist, just after the closure of the CEFER. Officially an IVF center, it used the agrément it had obtained for its “ART” (actually IVF) activity to practice semen cryoconservation and develop a dubious business in selling sperm collected among unemployed or students (depending on the newspaper) in only 48 h–with a lack of rigorous biological controls. ¹⁴⁶ This new case appeared to justify the CECOS’ permanent fears and prompted more professionals and observers to demand external rules. In this light, it is even clearer that the lois de bioéthique (which combined health safety license and most of the CECOS principles on gamete donation and reception) were not only the product of metaphysical considerations. The memory of the CEFER experiment, explicitly constructed by the legislator as an “anti-model”, and the new anxieties about “sperm trafficking” were vivid in the parliamentary debate and alluded to in the 1994 laws themselves.

Conclusion

How do ethical dividing lines appear and how do they move? Based on the case of French AID regulation, this study in socio-political history has highlighted the limitations of two symmetrical analyses: that of a cultural and homogenous explanation (like in terms of “bioconservatism” vs “bioliberalism”), and that of efficient minorities imposing their own views through Machiavellian strategies.

The recognition of the CECOS and the eventual procurement of a homogenous regulation based on its own doctrine ¹⁴⁷ was neither a predestined nor a fluid process. With a hint of counterfactual reasoning, we might state that around 1970 the realm of AID was more likely to be dominated by doctors closer to the Belgian and Danish formulas, at least not viewing reproductive medicine as a liability to the whole social order. The non-CECOS banking systems of the 70s were anything but the “disruptive” undertakings of radical-feminist or libertarian apologists. Prof. Netter, Dr Geller and Dr Dajoux considered the physician-patient relationship as a private (i.e., non-“official”) bond, as opposed to “public” medicine (meaning bureaucratic power and paternalism), and protected by professional ethics (déontologie). They took the risk of a wild market seriously but they thought it had to be mitigated by a responsible practice, based on decentralization, flexibility and judgement-free medicine, without any commercial purpose: in short, channeling rather than deregulating or over-regulating.

The opposite approach, Georges David's vision, was an integrated conception of ART, aligned with the thinking of French public health policymakers, especially in his secret aspiration for a policy without politics. ¹⁴⁸ Yet the CECOS patron's humbleness did not exclude a real tactical sense, an acute political understanding, a talent for realpolitik. ¹⁴⁹ As early as the mid-70s, he succeeded in obtaining “ownership” (to paraphrase Joseph Gusfield) of AID issues. With the inconspicuous but efficient support of Simone Veil, he became the major organizer of the field of “ethics” (more specifically bioéthique as it was coined in France, especially from the 1990s onwards) framed as a particular area in the name of the metapolitical nature of “civilizational” issues. He mobilized symbolic and practical state resources, combined with the prestige of his university and hospital positions and scientific reputation, to reconcile state agents and private physicians, mainstream figures and modernists.

David's struggle allowed the relatively fast recognition of ART, including its very liberal full social-security coverage. On the other hand, considering the other sperm banks as competitors, David ¹⁵⁰ did not really admit the existence of a dual market and the continuum that existed in ethical options and practices. He drew a boundary between “ethical” and “non-ethical” attitudes, classifying Netter and Geller on the wrong side, although they were simply hierarchizing medical norms differently and privileged a medical/non-medical criteria. ¹⁵¹ Under the CECOS system, ART patients were not clients to be satisfied, resulting in protections but also in undeniable drawbacks for them. ¹⁵²

After the 1978/79 clash in particular, the dynamics of controversy tended to reify the ethical line plotted by the CECOS. The approach to ART became more and more polarized, which explains why some options that should probably have remained more flexible were eventually rigidified in legal texts. However, the intransigence of the CECOS (especially concerning “non-medical” donor-ART), carried still important thoughts for our times of IVF industry, Silicon-Valley-minded biotechnologies and transhumanist prophecies: what is technically feasible is not necessarily licit or desirable; socio-technological change is not unavoidable or uncontrollable—even if it “happens abroad”; systems of governance may have a role to play in this matter.