Information Note on the Court’s case-law 248

February 2021

Caballero v. France (communicated case) - 37138/20

Article 8

Article 8-1

Respect for family life

Respect for private life

Refusal of the French authorities to allow the export of embryos for posthumous transfer in Spain despite the consent of the deceased husband: communicated

Following the death in 2019 of her husband – who had given his prior consen t for the embryos frozen by the couple to be used after his death – the applicant contacted a hospital in Spain and took steps with a view to undergoing assisted reproduction in the form of embryo transfer.

The applicant was refused permission by the Frenc h courts to export the embryos, on the grounds that the couple had no particular links to Spain and that the request was therefore aimed simply at circumventing a legitimate prohibition under French law. However, the applicant argues that her situation dif fers from that of the applicant in the case of Dalleau v. France , pending before the Court, because it concerns embryos – which contain her own genetic material – and not merely the gametes of her deceased husband.

In 2019, in an opinion on a planned refor m of the law, the Conseil d’État held that it was paradoxical to retain the requirement for both partners to be alive when the procedure was performed, as this effectively meant that a woman whose husband had died would have to forego any plans to have rec ourse to assisted reproduction using his gametes or the couple’s embryos, whereas she would be permitted to undergo artificial insemination on her own with the gametes of a third-party donor. In the interests of consistency, the Conseil d’État therefore re commended authorising posthumous artificial insemination or embryo transfer, subject to two conditions: the consent of the deceased spouse or partner, and the establishment of a fixed time frame – minimum and maximum periods after the death – for undergoin g this form of treatment. However, that recommendation has hitherto not been acted upon.

Communicated under Article 8 of the Convention.

(See also Dalleau v. France , 57307/18, legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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