EIT: Lapsella ei ole ihmisoikeussopimukseen perustuvaa oikeutta saada tietää kenen lahjoittajan sukusoluja on käytetty raskauden käynnistämisessä

8.9.2023 | Oikeusuutiset

Markku Fredman

Access to information about one’s origins: the refusal to disclose information about the gamete donors to applicants who were born through artificial reproduction techniques did not breach Article 8 of the Convention

In today’s (7.9.2023) Chamber judgment in the case of Gauvin-Fournis and Silliau v. France (application no. 21424/16) the European Court of Human Rights held, by a majority, 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 case concerned the inability, alleged by the applicants, who were born in the 1980s by means of medically assisted procreation (MAP) using third-party donors, to access information concerning the respective donors. This situation had lasted until 1 September 2022, when a new legal system for obtaining access to one’s origins entered into force. It introduced a system of access to information about one’s origins for individuals who had been born prior to its entry into force; however, this was subject to the donors giving their consent.

The Court noted that the situation complained of by the applicants resulted from decisions taken by the legislature. Each bioethics law had been preceded by a public debate in the form of consultations, in order to take into consideration all points of view. In the Court’s opinion, the legislature had duly weighed up the interests and rights at stake after an informed and gradual process of reflection on the need to lift donor anonymity. Reiterating that there was no clear consensus on the issue of access to origins, merely a recent trend in favour of lifting donor anonymity, it considered that the legislature had acted within its discretion (“margin of appreciation”). The respondent State could not therefore be criticised for the pace at which the reform had been enacted or for having been slow to agree to such reform.

The Court considered that the respondent State had not overstepped its margin of appreciation in this area, including in its decision when enacting the Bioethics Act of 2 August 2021 (Law no. 2021- 2017) to make access to information about one’s origins for persons in the applicants’ situation subject to the condition that the third-party donor gave his or her consent.

Lastly, the Court noted that when the applications were lodged with the Court, the principle of anonymity in gamete donations had not prevented doctors from obtaining access to medical information and disclosing it to individuals born through the relevant gamete donation, where required by therapeutic necessity, including with a view to preventing the risk of consanguinity, considered by the applicants to be an infringement of their right to health. With regard to nonidentifying medical information, the Court noted that the State had struck a faire balance between the competing interests at stake.

The Court concluded that the respondent State had not breached its positive obligation to ensure effective respect for the first and second applicants’ private life. 

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