What do we mean by « anonymous childbirth » ? It is a legal curiosity that exists in several countries — among them France, Italy, Luxembourg and the Czech Republic — in which any woman entering a hospital to give birth can require that her presence and identity remain secret. Anonymous birth concerns about 700 births every year in France, and is highly controversial. Just like medically assisted procreation, surrogacy and adoption, anonymous birth raises ethical questions concerning children’s upbringing.
Is it morally wrong to authorize women to give birth to a child and then abandon them? In the case that it is accepted, what other moral issues does it raise? It seems to pose an insolvable dilemma between women’s rights and children’s rights: a right to preserve their anonymity, conflicting with a right to know one’s origins.
To understand why anonymous birth can bring up ethical issues one needs to look at the way society views relationships between parents and children. As we’ve seen in France following the fight for marriage equality, a proportion of the population was opposed to gay marriage and homoparentality.
Putting aside the claims that homosexuality is a threat to the moral order of our society and that marriage is only meant for heterosexual couples, opponents of the law stated that children can and should only be raised by a man and a woman, as nature intended.
The ‘real’ parents: follow the laws of nature
The notion of nature is central in the moral debate concerning parenthood. By default the biological parents are the ones designated to raise their children, because they are deemed best suited to take care of their child [1]. This claim is old and remains strong in our day and age. From the conviction that it is necessary to follow the laws of nature stems the idea that it is what is best for the child. It is in the child’s interest to be raised by his biological parents.
But if you apply this principle to real life, you notice that it is not always the case. It is easy to put forth the cases of child abuse, and even pedophilia that are often perpetuated within the family circle. Even beyond those extreme cases, parents do not always love their children and even if they do, they are not always aware of the detrimental effects of their behavior on their progeny.
However, the biological link is still considered to be central in a child’s upbringing. In order to become a well-balanced adult a child needs to acquire a self-image rooted in reality, coming from its strong relationships with others. As David Archard explains in his article : “What’s blood got to do with it ? The Significance of Natural Parenthood”
The healthy development of any person requires the successful acquisition of a positive and stable self-image. This is best achieved through identifications with significant others, to whom the child is also tied by deep, reciprocated affection.
Who is better suited than the biological parents who shares physical and emotional traits with their offspring? In this case, the assimilation is easier because the bond is clear and simple. But you don’t need to have a biological link to someone to identify with them. Children can perfectly identify to someone who is not blood-related to them. Role models come from everywhere, and some adults are better suited than others, regardless of the ‘natural’ bond they have with the child.
However, some philosophers, think that all parents have a moral right to take care of their ‘natural’ children, because if they don’t it would break the special bond they already established with their baby. But when is the bond formed? Some argue that it already starts during pregnancy.
Pregnancy: beginning of motherhood?
Indeed, the body of a woman changes during pregnancy, it evolves to welcome the baby. Hormones are released to entice the woman into feeling love and joy towards the future newborn [2]. The maternal instinct could come from the pregnancy, as Caroline Whitbeck argues when she states that bodily experiences contribute to the maternal/paternal instinct by enhancing some feelings and fantasies concerning the future relationship with the child. Pregnancy would then lead the mother to love her children and care for them and create a special bond. If you follow this line of thought then it would be morally wrong to break this attachment by separating the child from the mother.
However, this does not happen every single time. Nature creates dispositions to love your own offspring but it is not always the case. Otherwise, surrogate mothers would not exist, nor would baby blues or phenomenons of infanticide such as the Courjault case in France.
Principle applied to new family schemes
Even though being raised by your biological parents is considered the norm, it is not an absolute moral rule. In our current society, there exists a lot of different types of families and upbringings. It does not always comprise children raised by a man and a woman that happen to be their biological parents. As David Archard explains, one can find 3 types of parents: the biological ones, the legal ones, that are considered as legal guardians of the child, and the social parents that are the ones bringing the child up daily. This distinction is applicable to all forms of families.
There are and have always been single-parents, but also more and more blended families of divorcees, and homosexual couples that raise children. In the end, it is not always in the child’s interest to be brought up by its biological parents. Actually what is important when having a child is the intention that parents have, whether they are the biological, legal or social parents. Thus, anonymous birth is not morally wrong as it does not always harm the child who is born anonymously. It can help children by allowing them to be raised by parents that truly want them, have good intentions and the ability to raise them in a nurturing environment. Plus, it gives women the right to choose to raise a baby or not. Just as pregnancy can lead to a strong bond between the mother and the child, anonymous birth can be beneficial to a child and its biological mother in the end.
However, just like adopted children, babies who are born anonymously might want to know about their biological parents growing up, and even look for them as adults. How should society respond to that kind of demand? Let’s look at the answer France provides.
Anonymous birth in practice
In France, after a law was adopted on January 22nd, 2002, a woman making this request has to meet a representative of the Conseil National pour l’Accès aux Origines Personnelles (CNAOP), who will inform her of the importance, for the child, to have access to its own origins and history. She is therefore invited to leave information to its attention about its biological parents’ health and identity. She can also refuse to do so.
This law was adopted after a fierce debate, opposing on the one side those who accused “anonymously born” children searching for their biological mothers to harm women’s freedom and right to choose, and on the other side, those who defended those children’s right to know their origins. The law appeared as a compromise : mothers are incentivized to grant the children access to information regarding their identity, but they can still refuse; and the CNAOP acts as a mediator between the child and the mother, ensuring her right to privacy and his or her right to their own origins are safeguarded.
Children have a fundamental right to know their origins
Compared to other elements that undermine the traditional family norm, anonymous birth creates an even more complex situation for children: they are not looking only for a donor, but for real biological parents, and a real mother who gave birth to them. Most notably, they are confronted to the issue of having been abandoned.
This issue has to be understood in the context of a large movement in favor of the right to know one’s origins. There was a time when adopted children were not told they had been adopted : adoption was supposed to induce a “second birth”, erasing the first one. These days, it is widely understood that social filiation does not erase biological filiation. There is an increased emphasis on two central values: the superior interest of the child, and the construction of a personal identity[3].
The European Court of Human Rights is at the forefront for safeguarding these two core values. Article 8 of the European Convention on Human Rights is the guardian of the right to privacy — and thus, the anonymous mother’s privacy — while also guaranteeing the right to know one’s origins. This leads to a delicate conciliation of these fundamental rights, operated by the Court : the circumstances of each case have to be taken into consideration. Having access to information concerning one’s own origins, and therefore the mother’s identity, is a necessary consequence of a child’s interest in developing its identity.
While anonymous birth appears increasingly more morally acceptable as other forms of forming a family arise, the anonymity of the mother seems to create an insolvable dilemma between the mother’s rights and the children’s rights to know their origins.
From irreconcilable rights…
Historically, when anonymous birth entered the realm of law, it was framed as fundamentally opposing women’s rights and children’s rights.
“Better abandoned than killed”
How did something like anonymous birth could become legal? The first answer was a moral argument: to prevent the moral catastrophe of abortion. As Nadine Lefaucheur, a sociologist who spent some time investigating the history of anonymous birth, puts it : “it was obviously not about respecting a right of women to decide (…), it was about preventing abortion and infanticide, to which the adulterous woman or the well-bred young lady may resort in order to save their own as well as their family’s honor”.
A similar argument was used by Italy: the Constitutional Court defined the mother’s right to remain anonymous as a pursuit of public interests, namely the guarantee of the child’s survival. However, the child’s right to life is also a right to a physically healthy existence, thus requiring a right to access all health information concerning its biological parents[4].
The secret mother thus became a “biological mother”, who is legally deemed not to have given birth to the child. Anonymous birth was created from a moral and paternalist argument, to preserve the right of the child to be alive, and to protect women from their own shame. Irène Théry describes it as a “perfect crime” : a means of oppressing women who have children out of wedlock, and erasing all traces of their fault under the benediction of law.
“Better vanished than forced mothers”
A feminist argument emphasized the liberty of women, and opposed the right of children to know their origins on this ground. They feared that the child, now a grown-up, searching for its origins would infringe on the woman’s liberty, thus making her guilty, and above all, forcing her to be a “mother” against her will. The secret of birth should be preserve, in order to preserve a woman’s right to choose whether to become a mother or not.
… Towards an attempt to show that both rights have the same goal
The first step for the conciliation of these rights came with an assertion that the notions of “origins” is not a biological one, but a biographical one. In France, a law passed in 2002 made it easier for children born through anonymous birth to search for their biological parents through the creation of the Conseil national pour l’accès aux origines personnelles (CNAOP). One of the arguments to justify the creation of this Council was to say that giving birth was a moment lived by two, three or even more individuals, and which is as much the mother’s as the child’s. Thus, the mother is not the only one to have a say in the matter: the child, the father, or even the grandparents can have a say. In 2009, the judge allowed a French couple to prove that they were the grandparents of a child born through anonymous birth. The argument is not about reasserting the importance of biological bounds, but biographical ones.
Therefore, a child has a right to know its own history. Not to force a woman to be a “mother” without her will, but to know all the elements of its own identity and biography. It is not about saying that the woman is a “biological mother”, but an additional individual who played a role in the child’s history. The same logic prevailed when Italy made it legal for legally recognized children to unconditionally access information about their biological parents’ identity, considering that being aware of one’s individual history is central to be part of society[5].
So how are women’s rights reinforced in this argument? The project of creating CNAOP was presented as a “feminist” one. The Minister who proposed this law, Ségolène Royal, explained that “the current practice of anonymous birth is not a victory for women, but a defeat”[6], as it mostly led disadvantaged women who resort to it to lose their children. In the woman’s interest, it has to be recognized that whatever circumstances led her to resort to anonymous birth do not mean that the birth should be deemed not to have happened. The woman may not want this event to be legally erased. She may want to play a role in her child’s life later on. That way, the new law still protected a right of women to refuse to lift the secrecy on their identity, yet also offered them a right to face their history — another woman’s right to choose.
[1] ARCHARD David, “What’s blood got to do with it ? The Significance of Natural Parenthood.” Res Publica Vol. 1 N°1, 1995.
[2]GHEAUS Anca, “The normative importance of pregnancy challenges surrogacy contracts” Analize — Journal of Gender and Feminist Studies • New Series. Issue №6, 2016.
[3] THERY, Irène, “Le droit face aux nouvelles valeurs de responsabilité générationnelle”, Rapport du groupe de travail Filiation, origines, parentalité, Ministère des Affaires sociales et de la santé, 2014.
[4] COLCELLI, V., « Anonymous Birth, Birth Registration and the Child’s Right to Know Their Origins in the Italian Legal System : a Short Comment. », J Civil Legal, vol 1, n°101, 2012.
[5]COLCELLI, V., op. cit.
[6] THERY, Irène, op. cit.
Videos :
- “Nés sous X : en quête d’identité”, L’Echo des Lois, La Chaîne Parlementaire, 14/12/2014
- Les tabous de la naissance, 2007, France 2
Figures : https://www.ined.fr/fr/tout-savoir-population/memos-demo/focus/accouchements-sous-x-france/
Infography and video done with Piktochart and Movie Maker.
