The European Court of Human Rights (ECHR) validated, Thursday September 14, the decisions of the French authorities to refuse post-mortem procreation requested by two women who wanted to have a baby with the gametes or embryos of their deceased husband, but with a downside.
The applicants were two women born in 1992, whose applications had been joined.
The first entered into a civil partnership in 2016 with her partner following 11 years of living together, but he learned shortly following that he had brain cancer. He deposited semen straws at the Conception hospital in Marseille.
The couple married in January 2019 and the woman underwent two cycles of intrauterine insemination, which ended in failure. Her husband died shortly followingwards and the applicant requested the export of her husband’s gametes to Spain, a country which authorizes post-mortem procreation.
“Right balance”
The second applicant and her husband were the parents of two children born in 2004 and 2018, the second by in vitro fertilization because the husband suffered from leukemia. Five of their embryos were stored at Brest University Hospital in February 2018. After the death of her husband in April 2019, the applicant also requested the transfer of her embryos to Spain.
In both cases the French authorities refused to grant their requests. Indeed, the French Public Health Code prohibits posthumous procreation and the export of gametes or embryos for purposes prohibited by law.
The two thirty-year-olds believed that Paris had violated Article 8 of the European Convention for the Protection of Human Rights, which protects the right to respect for private and family life.
“The ECHR underlines that the Council of State exercised its control over the disputed refusals in accordance with the methodology it had adopted” in a previous decision. “It concludes that the domestic authorities struck a fair balance between the competing interests at stake, and that the respondent State did not exceed the margin of appreciation available to it” and that France has therefore not violated the Convention.
However, the ECHR issues a caveat: it thus recognizes that the opening since 2021 by the legislator of medical assistance for procreation to female couples and single women “poses in a renewed way” the question of the relevance of the ban on posthumous procreation in France.
