November 28, 2023
by Eva Brems
Six members in a room in Ghent and five on a screen have enjoyed unpacking and weighing all the separate opinions in the Grand Chamber judgment in Yüksel Yalcinkaya v. Türkiye. Without pausing for tea, we move on to the other case Irene has selected for our biweekly discussion.
Baret and Caballero v. France combines two applications brought by women living in France who wanted to have recourse to medically assisted reproduction (MAR) in Spain, in order to circumvent the French ban on posthumous conception. One applicant was refused permission to export her deceased husband’s sperm; the other was not allowed to export the embryos that had been created with her deceased husband.
In an earlier case, the Court had upheld a Czech ban on posthumous conception ruling on the basis of the State’s wide margin of appreciation in the area. Yet the new French case differs from the earlier Czech case on a number of important points: one is the explicit written consent of the deceased husbands, another is the fact that it involves embryos as well as sperm; and finally, this case is not about assisted reproduction in the country that has the ban, but about the possibility to have it abroad. Despite these differences, a unanimous Court finds no violation.
I am curious to hear the colleagues’ take on this case. It has been sticking in my head and bothering me while I was doing other things. I even interrupted my gym practice to type a note in my phone reminding me to check something in the Czech case. I am hoping the discussion will help me put my finger on what exactly I find so disturbing.
Introducing the discussion, Irene immediately adds her interpretation: ‘The separate opinion by Judge Ravarani suggests that subsidiarity is key to understanding this case. The Court wants to respect the sensitivities of member states. So, I see this as one of those cases in which the Court is trying not to upset France.’
Several participants jump in when she mentions the separate opinion: ‘This is a very good separate opinion, except for it being concurring, rather than dissenting!’, Tom kicks off. ‘Yes’, adds Leonore, ‘Judge Ravarani listed all the arguments in favour of finding a violation, but then talked himself out of dissenting… He points at the heart of the problem, which is the lack of logic of the French system. An important reason for banning posthumous conception seems to be the idea that it is contrary to the interests of the child to be born in those circumstances. Yet, after a recent change in domestic law, France allows single women to conceive through MAR. This means that the system would allow the applicants to conceive with sperm from an anonymous donor, while giving away the embryos they made with their late husbands to another couple, yet would ban them from carrying those embryos themselves or conceiving with the sperm of their own late husbands. That seems absurd.’ Several of us nod in agreement. ‘I wonder if judge Ravarani first voted with the majority and only later came up with these arguments and regretted his vote?’, Sophie wonders. Irene expresses the consensus of our group when she concludes ‘I think he saw all the problems, but felt trapped in the logic that says that if there is no European consensus and it is a sensitive ethical question, there should be a wide margin of appreciation’.
At this point, Rick intervenes. He is a potential new member, finding out whether he would like to join the Strasbourg Club. ‘I am on board with the wide margin of appreciation. But even with a wide margin, there is sometimes a violation. In my view, the French legislation is very far-reaching and very patronizing. I read it as expressing a negative value judgment about children that have only one parent. That is a discriminatory position that in my view would justify narrowing the margin again. On top of that, I think it is problematic that France uses its territorial jurisdiction to block the effective enjoyment of a Convention right in another State Party’.
Hearing this, I am triggered to table my own issues with the case. As I am participating online today, I raise my electronic hand. Sylvie’s hand was first though, and she raises a new point: ‘It is curious to me that the case does not include any reference to EU law; at first sight there might be a problem here regarding free movement of services within the EU’. This is great point that receives may agreeing nods, but no one seems confident about the details of EU law in this field.
When Irene, in her moderator role, calls on me, there is a lot I want to say.
‘Well, in the first place’, I start off, on what already feels like it might become a rant, ‘I am not on board with the legitimate aim in this case. The Court refers to the rights of others and to the protection of morals. The rights of others can be dismissed here, because the husbands had given their consent, and the children are not yet born. In any case, it would not make sense to argue that it would be better for them to not be born rather than be born to a single mother after the death of their father. This means that this is about a certain conception of morals. The only concrete element in the Court’s reasoning in this respect is a reference to a preference – before the change of the law in France – to not assist in children being born without a father. I agree with Rick, that this is not morals, this is patronizing and discriminatory.’
As no one is interrupting me, I continue: ‘But I am even more bothered by the state’s claim to exercise this ‘moral’ control over its citizens abroad. You know, I actually googled to see whether sperm could be kept in a regular fridge at home.’ This is received with surprised faces and giggling. ‘So yeah, that is not an option; the dependence on medical storage processes enables state control over people in situations in which they need medical assistance to procreate. It is as if the moral issue at stake is so huge that extraordinary measures are required. I mean, there are not many other situations in which the state would prevent a person from taking across the border a thing that might enable them to do something abroad that would be forbidden in France. Would they confiscate a car I might use in a street race abroad, or money I would use to subsidize a dodgy cause abroad? And yet they would control procreation, while that is a beautiful thing! This type of control is rare and extraordinary, and I really do not see what the enormous moral threat is that would justify it in this situation.’
Was that a rant? I fear it was. Oh well, providing a place to rant about case law is probably one of the purposes of our nerdy club.
Sophie seems to agree with that, as she responds with a rant of her own, mixing indignation and cynicism: ‘That is how it is: anyone who needs medical help for their procreation, is faced with a control apparatus. They have to deal with a world of ethical committees, financial means requirements, controls of their medical records… The state wants to stop some people from procreating from fear of children becoming a burden on the state. The crux is that they can only do this to certain types of couples and individuals. It is ableist! It is homophobic!’
Sophie is pregnant, and is talking about her own experience at this point. She concludes by returning to the question of the ‘moral controversy’ in this case: ‘it is about life choices outside the mainstream; about dealing with disease, and with death’. Tom jumps in: ‘it is about the “makeability” of humans – that is profoundly ethical’. And Leonore continues ‘have you noticed the term “ethical dumping” in the judgment? It is used to justify the restrictions on taking gametes abroad. That is such an ugly term for forum shopping in ethical matters.’
While this comment leads the group to a discussion about US states banning travel for abortion, I return to musing about my own discomfort with this case. It is probably a case of old-fashioned, feminist attachment to bodily autonomy (or in more catchy Dutch ‘baas in eigen buik’- ‘boss of one’s belly’); there is a parallel with abortion autonomy, in that it seems abhorrent to have the state decide the fate of my embryo. As we are drifting away from the case in our discussion and thoughts, Rick – our candidate-member – announces he has to leave. ‘But I would definitely like to join the Club’.’ Hear hear’, I am thinking, ‘the new kid appears to be rant-resistant. By all means, let’s keep him on board.’