EIT: Kuolleen henkilön sukusolujen vientikielto maahan, jossa niiden käyttö keinohedelmöitykseen on sallittua, ei riko ihmisoikeussopimusta

15.9.2023 | Oikeusuutiset

Markku Fredman

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

In  Chamber judgment in the case of Baret and Caballero v. France (applications nos. 22296/20 and 37138/20) the European Court of Human Rights held, unanimously, that there
had been:

  • No violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

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.

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