THIRD SECTION

Application no. 70035/10 Daniela NEDESCU and Calin NEDESCU against Romania lodged on 26 November 2010

STATEMENT OF FACTS

1. The first applicant, Mrs Daniela Nedescu , is married to the second applicant, Mr Călin Nedescu . They are Romanian nationals, were born in 1976 and live in Bucharest . They are represented before the Court by Ms Diana-Elena Dragomir , a lawyer practising in Bucharest .

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. In 2008 the applicants, who did not have children although they wished to, resorted to a medical technique of artificial procreation at a private clinic, S. Clinic. Following an ovarian stimulation and an in-vitro fertilisation, seven embryos were obtained, of which three were inseminated immediately and resulted in Mrs Nedescu ’ s pregnancy. Ms Nedescu gave later birth to a child.

4. The remaining four embryos were cryogenized and deposited at S. Clinic in November 2008 with a view to a future insemination of Mrs Nedescu .

5. On 24 July 2009 the Directorate for the Investigation of Organised Crime and Terrorism attached to the Prosecutor General ’ s Office of Romania (DIICOT) closed the S. Clinic, seized all the genetic material found there, including the applicants ’ embryo s, and deposited it at the Mina Minovici Institute of Forensic Medicine (“IFM”).

6. On 13 March 2010 the applicants requested that they be allowed to retrieve their embryos, as they wished to proceed with a new insemination in another clinic.

7. On 30 March 2010 DIICOT informed the applicants that they could recover the embryos directly at the IMF; for that purpose they had to be accompanied by an embryologist and to provide a special container with liquid nitrogen for the transfer.

8. On 21 July 2010 the applicants went to IFM accompanied by an embryologist, however, they were not allowed to retrieve the embryos. They were asked instead to show that the National Transplant Agency (“the Transplant Agency”) had approved the transfer.

9. Mrs Nedescu therefore took steps, under the supervision of a specialised medical doctor, for a new ovarian stimulation in the hope that new embryos be obtained.

On 18 August 2010 she found out that her state of health did not allow her to undergo another ovarian stimulation.

10. Therefore, the applicants resumed their efforts to retrieve the embryos deposited with the IMF.

11. As their efforts were unsuccessful, in November 2010 they lodged with the Bucharest Court of Appeal an action against the Transplant Agency and the Ministry of Health, seeking to obtain the Transplant Agency ’ s authorisation for the transfer of their embryos to a specialised and authorised clinic, whether in Romania or abroad.

12. On 13 December 2010 the Transplant Agency informed the applicants that it did not agree with the transfer, having regard to the fact that DIICOT had unlawfully deposited the embryos with the IFM, that the latter had never obtained the agreement required in order to act as a bank of tissues and cells, and that the Code of criminal procedure invoked by DIICOT did not provide any guarantees as to the safety of the embryos deposited with the IFM.

13. The Bucharest Court of Appeal dismissed the applicants ’ action on 22 March 2011. The court considered that in the light of the relevant legislation, requiring specific standards of quality and safety with regard to the genetic material, and in so far as neither S. Clinic nor the IFM were accredited or authorised to function as banks of genetic material, the Transplant Agency ’ s refusal was justified and in accordance with the law.

14. The applicants contested this judgment before the High Court of Cassation and Justice.

15. The High Court gave its ruling on 20 December 2011, allowing the applicants ’ request and obliging the Transplant Agency to authorise the transfer of the four embryos from the IFM to an authorised clinic in Romania or abroad.

It found on the one hand, that the Transplant Agency, which was organised as a structure within the Ministry of Health, had been duly informed about the investigating authorities ’ decision to deposit at the IMF the material seized at S. Clinic, and, on the other hand, that the Ministry of Health had signed, together with the investigating authorities, the minutes drawn up at the end of procedure of depositing the embryos with the IMF.

It held that in so far as the Transplant Agency ’ s attribution was to coordinate the activities of procurement, processing, preservation, storage, validation and distribution of human tissue and cells in Romania , there was no legal ground for it to interfere with the implementation of the prosecutor ’ s decision to return the embryos.

The High Court further relied on the Government ’ s observations submitted in the case of Knecht v. Romania (no. 10048/10 , 2 October 2012), from which it appeared that Ms Knecht had been authorised by the investigating authorities to retrieve her embryos stored at IMF, and that the Government considered that under the current legislation, she had the right to organise the transfer of her embryos to an authorised clinic. The High Court stressed that the embryos belonging to Mrs and Mr Nedescu had been stored in the same container as those belonging to Ms Knecht ; therefore there was nothing to prevent them from organising the transfer of their embryos to an authorised clinic in Romania or abroad.

16. On 26 March 2012 the applicants were informed by DIICOT that the prosecutor had appointed a new custodian for their embryos, Panait Sârbu Hospital ; therefore, if they wanted to retrieve their embryos, they had to contact that hospital in order to decide upon a date for the transfer.

17. On 27 September 2012 the applicants were informed by the Panait Sârbu Hospital , in reply to their request, that they could retrieve the embryos only in the presence of a delegation composed of a representative from the Transplant Agency, an embryologist from S. Clinic and a DIICOT representative.

COMPLAINTS

Relying on Articles 2 and 8 of the Convention, the applicants complain about the seizure of their embryos, followed by the refusal of the Transplant Agency to authorise their transfer, and finally about the abusive conditions set by Panait Sârbu Hospital in order to allow the retrieval and transfer of their embryos.

They allege that as a whole, the authorities ’ behaviour amounts to a disproportionate interference with their private and family life since, for more than two years now, they have not been allowed to use their embryos for a new insemination with a view of having another child. Having regard to the state of health of Mrs Nedescu , and in the event that their embryos became non-viable or have been damaged during this period, their chance of having another child was irreversibly lost.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicants ’ right to respect for their private and/or family life within the meaning of Article 8 of the Convention, on account of their inability in which they have been since 2010 to retrieve their embryos from the legally appointed custodian, i.e. successively, the Institute of Forensic Medicine and the Panait Sârbu Hospital?

2. If so, did that interference comply with the requirements of Article 8 § 2 of the Convention?