Legal summary

September 2023

Baret and Caballero v. France - 22296/20 and 37138/20

Judgment 14.9.2023 [Section V]

Article 8

Article 8-1

Respect for private life

General legal prohibition on posthumous assisted reproduction within the national territory and on export of gametes and embryos for that purpose to Spain, where the practice is permitted: no violation

Facts – The domestic authorities refused to export to Spain, where posthumous medically assisted reproduction (MAR) is permitted, the sperm of the first applicant’s deceased husband (application no. 22296/20), and the embryos created by the second applicant (no. 37138/20) with her deceased husband, in application of the 1994 Act prohibiting posthumous MAR in France.

Law – Article 8:

(1) Applicability – A couple’s decision to conceive a child and to have recourse to MAR was protected by Article 8, as such a choice was an expression of private and family life. In addition, a person’s ability to exercise a conscious and considered choice regarding the fate of his or her embryos concerned an intimate aspect of his or her personal life and accordingly related to his or her right to self-determination, and therefore his or her private life. In those circumstances, there was no need for the Court to rule on whether the impugned prohibition also affected family life.

Conclusion : Article 8 applicable under its “private life” aspect.

(2) Merits –

(a) Preliminary observations –

In the present case, as in Pejřilová v. the Czech Republic , the respondent State had to be afforded a wide margin of appreciation, since access to MAR techniques raised sensitive moral and ethical considerations and there was no clear consensus among the member States of the Council of Europe on the issue of posthumous conception.

However, the present cases could be differentiated from the Pejřilová case in two respects. In the first place, in contrast to Czech law, which merely prohibited posthumous conception within the national territory, the prohibition in French law on exporting gametes or embryos stored in France to another country for purposes which were prohibited within the national territory excluded, as a matter of principle, the possibility of having recourse to posthumous insemination in a country where this procedure was legal. Secondly, in the second of the present applications, the applicant had sought authorisation to have MAR using stored embryos created with her deceased husband and not, as in the first of the present applications or in Pejřilová , using the deceased husband’s sperm. The Court considered that the storing of an embryo attested to the existence of a more advanced plan to become parents, to which particular attention had to be paid from the standpoint of the existence and identity of the woman in question.

(b) Compliance with Article 8 –

(i) Whether there had been an “interference” – the refusal to grant the applicants’ requests to export sperm or embryos stored in France to Spain constituted an interference with their right to attempt to have children using MAR techniques, with a view to pursuing their plans for a family as foreseen with their husbands during the latter’s lifetimes, which related to the exercise of the applicants’ right to respect for their private life.

(ii) The legal basis for the interference – The applicants did not contest the accessibility or foreseeability of the relevant provisions of the Public Health Code in so far as they clearly set out an absolute prohibition on both posthumous insemination and on the export of gametes or embryos to be used in another country for purposes prohibited within the national territory.

However, in its decision of May 2016 in Gonzalez Gomez , which had been referred to as a source of legal uncertainty, the Conseil d’État had found that the circumstances of that particular case breached Article 8. Reviewing in abstracto whether the law prohibiting posthumous insemination was compatible with Article 8 of the Convention, it had found that in principle it was. Reviewing in concreto the effects of the implementation of that law, the Conseil d’État had concluded that, in requesting the export of gametes to her country of origin, the applicant, a Spanish national, was not seeking to circumvent French law. It had therefore held that, in those particular circumstances, the implementation of the French legislation had entailed manifestly disproportionate consequences. Nevertheless, that decision was not such as to call into question the foreseeability of the 1994 Act within the meaning of the Convention. The level of precision required of domestic legislation – which could not provide for every eventuality – depended to a considerable degree on the content of the law in question, the field it was designed to cover and the number and status of those to whom it was addressed. A degree of doubt in relation to borderline facts did not by itself make a legal provision unforeseeable in its application. Nor did the mere fact that a provision was capable of more than one construction mean that it failed to meet the requirement of “foreseeability”; what was at stake was the role of adjudication vested in the courts.

Having regard to its remit, the Conseil d’État had not confined itself to reviewing the legal basis for the impugned decision in abstracto , but had performed an in concreto assessment of whether the consequences of applying this Act had been compatible with the Convention, before concluding that the impugned refusal had been incompatible with the right to respect for private and family life as guaranteed by the Convention, owing to its disproportionate nature in the circumstances of the case. However, such an in concreto review of the effects, in a given situation, of implementing the law before a case was brought before the Court in application of the principle of subsidiarity, could not render the domestic courts’ interpretation or application of that law unforeseeable or arbitrary.

The interference had therefore been “prescribed by law”.

(iii) The legitimacy of the aim pursued – The Court first noted that at the time of the impugned requests and refusals access to MAR was subject to validation of the potential parents’ “family project” and the consent of both partners; it considered, as in the cases of Evans v. the United Kingdom [GC] and Pejřilová , that in the circumstances of the present applications, the impugned interferences had been aimed at guaranteeing respect for human dignity and self-determination and ensuring a fair balance between the interests of the different parties involved in MAR.

Secondly, the Court observed that the impugned prohibitions derived from the notion of family as it prevailed at the time of the events in issue; this was reflected, in particular, in the legislature’s refusal to permit the use of MAR, envisaged at the relevant time as strictly limited to couples experiencing infertility, to allow the birth of children who had no father. As indicated by several reports and studies and by the system for access to MAR examined in Pejřilová , posthumous conception raised “ethical question[s] which involve[d] considerations of public interest that [could] reflect, among others, the situation of to-be-born children”.

It followed that the impugned interferences had pursued the legitimate aims of “the protection of the rights and freedoms of others” and the “protection of morals”.

(iv) The necessity of the interference in a democratic society – On the one hand, the Court saw no reason to call into question the applicants’ free and informed wish to pursue their plans for a family as foreseen with their deceased husbands. Only the continued use of the MAR techniques initiated while their husbands were alive would have allowed their decision to have a child which shared their genetic material to be respected. Having regard to the importance of the right to personal self-determination, the impugned prohibitions raised a question that was crucially important for the applicants and was serious in terms of their right to respect for their private life.

On the other hand, since 1994 French law had prohibited, in absolute terms, posthumous conception; this covered both posthumous insemination and the export of gametes or embryos to another country if the intended purpose was one prohibited within the national territory. Indeed, while specifying that this did not preclude it from conducting an in concreto review of the interference with the applicants’ right to respect for their private life, the Conseil d’État had held that, in principle, this absolute prohibition was compatible with Article 8, on the ground that “it fell within [each State’s] margin of appreciation”. In this connection, the Court reiterated that there was no clear European consensus as to whether posthumous conception should be permitted and that, in consequence, the respondent State had to be afforded a wide margin of appreciation.

In the light of all the foregoing considerations, the Court’s task was to determine whether the domestic authorities had struck a fair balance between the competing interests at stake, namely, the applicants’ personal interest in pursuing their plans for a family and the general-interest grounds relating to ethical considerations, put forward by the legislature and the Government

In the first place, the absolute prohibition on posthumous insemination was intended to safeguard general interests based on moral or ethical considerations. It reflected a political choice dating back to the first Bioethics Act of 1994, which had been consistently repeated on each occasion that the Act had been periodically amended and, recently, in 2021, in the context of comprehensive legislative debates preceding the enactment of the Bioethics Act of 2 August 2021, which extended access to MAR to female couples and single women. At the end of the legislative process, it had been decided to maintain the status quo as concerned posthumous conception, regard being had to the specific ethical issues involved. In matters of general policy, on which opinions within a democratic society could reasonably differ widely, the role of the domestic policy-maker had to be given special weight. This was all the more so where, as in the present case, a social issue was at stake.

Further, it was clear from the applicable legislative provisions and the case-law of the Conseil d’État that the prohibition on exporting gametes or embryos which had been deposited and stored in France was a consequence of the prohibition on posthumous insemination within the national territory. The prohibition on export, which amounted to exporting to other countries the national prohibition on posthumous conception, was thus intended to prevent circumvention of the provisions of the Public Health Code banning it. In the Court’s view, it was not inconsistent with the aim thus defined by the legislature to find that the impugned prohibition on export was compatible, as a matter of principle, with the right to respect for private life, otherwise the absolute prohibition on posthumous insemination would be rendered meaningless.

Furthermore, until the enactment of the revised version of the Act in 2021, the legislature had attempted to reconcile the wish to broaden access to MAR – taking into account medical, scientific and technological advances – with the need to respect society’s concerns as to the sensitive ethical considerations raised by the prospect of posthumous conception. Equally, and as confirmed by the Conseil d’État , the prohibition on exporting gametes or embryos arose from the wish to strike a balance between the competing interests, in the light of the aim pursued by the legislature, specifically that of preventing a form of “ethical dumping”.

Secondly, the above considerations were also relevant as concerned the prohibition on posthumous embryo transfer. The successive amendments to the Bioethics Act had never led to a distinction being established on the basis of whether the MAR requests related to posthumous insemination or posthumous transfer of embryos. The refusal to make a distinction between the two situations, despite proposals to that effect, demonstrated the sensitive and complex nature of the issues raised by the question of whether to allow posthumous MAR. The Conseil d’État had also stated that the outcome of a review of whether the impugned provisions and their implementation were compatible with Article 8 would be no different in the event of a dispute concerning embryos. The Court had previously found that an embryo did not have independent rights or interests. In those circumstances, it considered that, in prohibiting the posthumous transfer of embryos, the legislature had not overstepped its margin of appreciation.

Thirdly, and lastly, the fact that a law had in principle been found to be compatible with the requirements of Article 8 did not, even in cases such as the present one where the law imposed a general and absolute prohibition, dispense the State from carrying out an examination of the effects of the application of that law in a given situation. It had been on that basis that the Conseil d’État had reviewed the circumstances of the two present cases, in accordance with the methodology laid down by it in the Gonzalez Gomez decision. It had noted that in submitting the requests in question, the applicants’ sole aim had been to circumvent French law, and that they had not put forward any particular arguments that would have justified the law not being applied in their cases. It had noted that they had no links with Spain and that the mere fact that the deceased husband had consented to the procedure or that an embryo existed was not sufficient to find that there had been an excessive interference with their right to respect for their wishes. For its part, and since the applicants had not adduced before it any other specific circumstance in support of their arguments, the Court considered that, in the circumstances of the present cases, there was no reason to depart from the findings of the domestic court.

(v) Conclusion – The domestic authorities had struck a fair balance between the competing interests at stake and the respondent State had not overstepped its margin of appreciation.

Nevertheless, the Court acknowledged that the legislature’s decision to extend the right to MAR to female couples and single women since 2021 reopened the debate as to the relevance of the justification for maintaining the prohibition complained of by the applicants. The Court reiterated that, while the States enjoyed a wide discretion in the bioethical sphere, the legislative framework put in place by them had to be coherent.

Conclusion : no violation (unanimously).

(See also Evans v. the United Kingdom [GC], 6339/05, 10 April 2007, Legal summary ; Parrillo v. Italy [GC], 46470/11, 27 August 2015, Legal summary ; Pejřilová v. Czech Republic , 14889/19, 8 December 2022, Legal summary )

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

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