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The major bioethics laws of 1994, 2004 and 2011 all require, at a fixed term (five years for the laws of 1994 and 2004, seven years for the law of 2011), re-examination before the Parliament. These laws anticipate their own expiry and their need for updating. "Expiry" and "updating" may seem like surprising terms to use, more suited to laws that, unless drawn up in exceptional circumstances, are meant to be written to last. They are even less suited to moral rules, based on tradition, a revelation or on respect for principles, as in all cases, they relate to a personal commitment that only makes sense in an undefined time horizon. What would become of a moral law that could possibly change? Does that mean that the laws of bioethics are exceptional in nature, both as a law and because they are supposedly related to ethics? No, because these laws are linked to technological progress, which responds neither to emergency situations nor to exceptional circumstances, but to permanent change.
The initial preoccupation goes back to 1982, to the first "test tube baby", Amandine, who had a considerable impact. One year later, after the French national research assembly, the French National Consultative Ethics Committee for life sciences and health was set up. Ten years later, advances in genomics raised fears of a form of “patentability” and marketing of living organisms and individual genetic characteristics. This led to the passing of three laws in July 1994 – the first on data processing in the health sector, the other two relating to respecting the human body, the other to organ donation and using products from the human body. It was then said that these laws would be re-examined by the Parliament in five years, following assessment of their application by the Parliamentary committee to assess scientific and technological choices.
However, and although Dolly the sheep (the first cloned mammal) created uproar in public opinion in 1997, a new law was only passed then years later in 2004. It contained the same revision clauses, but seven years passed until the next law was adopted in 2011, and the maximum revision time was extended to seven years. That revision should have happened in 2018. After much consultation, it would seem that the new version of the law will be brought before the Parliament during the first quarter of 2019, only a few months late. During the public debate that precluded the new version, voices arose calling for the rectification times to be shortened, or for permanent rectification that would take account of unceasing scientific and technological advances, which, we are assured, are rampant.
On reflection, it would be unwise to impose a period shorter than seven years provided in the 2011 law, as for the moment, this is the only period that has been respected, at least almost. By imposing stricter rules, which experience has shown are never applied, and are therefore inapplicable, are we not running the risk of discrediting the law? Should we then dispense with the deadline and envisage amendments as and when science and technology advance?
It should be underlined that the periods mentioned in the law are maximum periods. Nothing precludes amendments “pre-term”, should the urgency of a new invention require it. This is exactly what led to the partial revision of the 2011 law in 2013. Finally, let us add that a permanent rewriting of bioethics laws would have unwanted effects, as the public debate would risk being overtaken by “professionals”, entirely devoted to one cause or the other and with the only availability required to defend their positions full time.
Artificial intelligence researcher
Jean-Gabriel Ganascia is a professor of IT at the Pierre-et-Marie-Curie University (Paris 6). He chairs the CNRS ethical committee (Comets).