Prohibition on exporting gametes and embryos to a country which authorises posthumous insemination did not breach the right to respect for private life protected by Article 8 of the Convention
JUDGMENT
Baret and Caballero v. France 14.09.2023 (app. no. 22296/20 and 37138/20)
SUMMARY
The cases concerned the prohibition on exporting the sperm of the first applicant’s deceased
husband and the embryos created by the second applicant with her deceased husband to Spain, a
country where posthumous conception was permitted.
The Court found in particular that the contested prohibition had affected the applicants’ private life,
in that the possibility for people to exercise their choice as to what happened to their embryos or
gametes came within the ambit of their right to self-determination, and that it constituted an
interference with their right to attempt to have children by having recourse to medically assisted
reproduction (MAR) techniques.
It considered that the impugned interference, which derived from the notion of family as it prevailed
at the time and which aimed to guarantee respect for human dignity and self-determination and to
ensure a fair balance between the interests of the different parties involved in MAR, pursued the
legitimate aims of “the protection of the rights and freedoms of others” and the “protection of
morals”.
As to the necessity of the impugned interference, the Court considered that the absolute nature of
the prohibition on posthumous insemination in France was a political choice and that, when it came
to a social issue relating to moral or ethical considerations, the role of the domestic policy-maker
had to be given special weight. It noted that the prohibition on exporting gametes or embryos,
which equated to “exporting” the prohibition on posthumous conception within the national
territory, had as its aim to avert the risk that the provisions of the Public Health Code prohibiting this
practice would be circumvented. It also noted that, up until the enactment of the Bioethics Act of
2 August 2021, the legislature had attempted to reconcile the desire to extend access to MAR with
the need to respect society’s concerns as to the sensitive ethical considerations raised by the
possibility of posthumous conception.
The Court found that the above considerations were also relevant as concerned the prohibition on
posthumous embryo transfer, reiterating that an embryo did not have independent rights or
interests.
It pointed out that the Conseil d’État had carried out its review of the contested refusals in
accordance with the methodology laid down by it in its decision in Gonzalez Gomez and that, in the
circumstances of the present cases, there was no reason to depart from the findings of the domestic court. It followed that the domestic authorities had struck a fair balance between the competing interests at stake, that the respondent State had acted within its discretion, and that there had therefore been no violation of Article 8 of the Convention.
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.
PROVISION
Article 8
PRINCIPAL FACTS
The first applicant, Ms Léa Baret (application no. 22296/20), is a French national who was born in
1992 and lives in Saint-Raphaël. The second applicant, Ms Laurenne Caballero (application
no. 37138/20), is a French national who was born in 1992 and lives in Langolen.
Application no. 22296/20
In 2016, after living together for eleven years, Ms Baret and M.B. entered into a civil partnership.
That same year M.B. was diagnosed with a brain tumour. Since it was likely that chemotherapy
would affect his fertility, he deposited his sperm with the centre for reproductive biology at the
Centre d’étude et de conservation des œufs et sperme (Centre for research and storage of eggs and
sperm, the CECOS) at the Conception Hospital in Marseille.
In January 2019 Ms Baret and M.B. were married. In March 2019 they underwent two cycles of
intrauterine insemination using some of the sperm stored at the CECOS. The first cycle was
unsuccessful and the second was not completed owing to M.B.’s death. In a will drawn up at the
time of their marriage, M.B. had named Ms Baret as the only person with the right to decide on
whether to use or destroy the stored sperm if he were to die before she became pregnant,
specifying that he wanted her “to be able to conceive posthumously, perhaps in another country”.
In May 2019 Ms Baret applied to the CECOS for authorisation to export her deceased husband’s
sperm to a Spanish healthcare institution for the purpose of undergoing posthumous MAR. The
CECOS replied that her request had to be submitted to the relevant Agency of Biomedicine for
approval, and that, in the interim, it was suspending application of the provisions of the Public
Health Code governing the disposal of stored gametes in the event of the donor’s death. In January
2020 it forwarded the export request to the Agency of Biomedicine, specifying that posthumous
MAR could only be attempted in Spain during a twelve-month period following the death, that is,
until 23 March 2020 in the applicant’s case.
On 4 February 2020 Ms Baret asked the urgent applications judge at the Marseille Administrative
Court to order the Marseille University Hospital Trust (Assistance publique Hôpitaux de Marseille –
APHM) to take all necessary measures to enable the export of M.B.’s sperm to go ahead so that she
could undergo MAR in Spain. In an order of 10 February 2020, her application was rejected because
the two-month time-limit available to the Agency of Biomedicine for replying to her request of
January 2020 had not yet expired, and the APHM had not acted in a manifestly unlawful manner in
refusing to authorise the export.
Ms Baret lodged an appeal against that decision, which was rejected on 28 February 2020 in an
order upholding the findings of the lower court.
Application no. 37138/20
Ms Caballero and her husband had two children, who were born in October 2014 and December
2018. The second child was born through in vitro fertilisation while the husband was suffering from
T-cell acute lymphoblastic leukaemia. With a view to expanding their family, the couple had begun the procedure to undergo MAR, and five embryos had been stored at the Brest University Hospital in February 2018.
In January 2019 Ms Caballero’s husband expressed the wish that, should he die, Ms Caballero be
able to use the stored embryos. In February 2019 the couple renewed their consent to store the
embryos.
After her husband’s death in April 2019, Ms Caballero took steps to undergo MAR with embryo
transfer in Spain.
In August 2019 the Rennes University Hospital sent her a letter reminding her that, under French
law, posthumous embryo transfer was not permitted.
In December 2019 Ms Caballero asked the urgent applications judge at the Rennes Administrative
Court to order the director of the hospital to take the necessary measures to allow the export of the
stored embryos to the Spanish healthcare institution. The urgent applications judge rejected her
application in an order. Ms Caballero appealed against that decision to the Conseil d’État, which
rejected it in an order of 24 January 2020.
THE DECISION OF THE COURT…
Article 8
The Court saw no reason to call into question the applicants’ free and informed wish to realise the
plans for a family as foreseen with their deceased husbands. It noted that posthumous conception
had been prohibited in absolute terms under French law since 1994. Articles L. 2141-2, L. 2141-9 and
L. 2141-11-1 of the Public Health Code prohibited posthumous insemination and the export of
gametes or embryos to another country if they were to be used for purposes prohibited within the
national territory.
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 realising their plans for a family and the general-interest grounds relating to ethical considerations, put forward by the legislature and the Government.
The Court pointed out firstly that the aim of the absolute nature of the prohibition on posthumous
insemination was to safeguard general interests relating to moral or ethical considerations. This
prohibition represented a political choice going back to the first Bioethics Act of 1994, which had
been consistently repeated each time that the Act had been revised and, recently, in 2021, in the
context of comprehensive legislative debates on the subject. It noted that the legislative process had
resulted in a decision to maintain the status quo, regard being had to the specific ethical issues
involved in posthumous conception. The Court reiterated that in matters of general policy, the role
of the domestic policy-maker should be given special weight.
The Court then observed that 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 was the corollary of the
prohibition on posthumous insemination within the national territory. The prohibition on export was
thus intended to avert the risk that the provisions of the Public Health Code banning such
insemination would be circumvented. In the Court’s view, the contested export prohibition 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.
On the one hand, and 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 with the need to respect society’s
concerns as to the sensitive ethical considerations raised by the prospect of posthumous conception.
At the same time, and as held 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
legislature’s aim of preventing ethical standards from being circumvented.
Secondly, the Court observed that the successive revisions of the Bioethics Act had never led to a
distinction being made 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 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 specified that a review of the
compatibility of the contested provisions and their application with Article 8 would be no different in
the event of a dispute concerning embryos. For its part, the Court reiterated its finding 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 discretion
(“margin of appreciation”).
Thirdly, the Court pointed out that the Conseil d’État had carried out its review in accordance with
the methodology laid down by it in its decision in Gonzalez Gomez (CE Ass., 31 May 2016,
no. 396848). It had held that in making the contested requests, 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 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. The Court considered that, in the circumstances of the present cases, there was no
reason to depart from the findings of the domestic court.
The Court concluded that the domestic authorities had struck a fair balance between the competing
interests at stake and that the respondent State had acted within its discretion. There had therefore
been no violation of Article 8 of the Convention.
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.
Separate opinions
Judges Ravarani and Elósegui each expressed a separate opinion. These opinions are annexed to the
judgment.
