January 23, 2024
by Merel Spaander
Given that the Strasbourg Club dedicated a discussion to the interesting case of Baret & Caballero v. France so recently, I can imagine that any reader would think: do we really need another blog post on this French case so soon? As an embryo law enthusiast, I must give a biased ‘yes’. This case not only addresses the meaning of reproductive rights under Article 8 of the European Convention on Human Rights (the Convention) but also raises questions about how the European Court of Human Rights (the Court) assessed the applicants’ access to (assisted) reproduction technologies under the notion of a ‘wide margin of appreciation.’
This case combines applications by two French women (Ms. Baret and Ms. Caballero) concerning posthumous reproduction, which is prohibited under the French Public Health Code. To circumvent this prohibition, the women wish to use posthumous medically assisted reproduction (MAR) in Spain, where it is authorized by law. The first applicant, Ms. Baret, requested that her deceased husband’s sperm to be transferred from France to Spain; the second applicant, Ms. Caballero, made a similar request to export the remaining embryos conceived using her and her deceased husband’s gametes. Both women have explicit written consent from their deceased spouses to use the gametes and embryos for posthumous reproductive purposes. Yet their requests were denied by the French authorities due to the absolute ban on posthumous reproduction under French law, which also bans the cross-border movement of gametes and/or embryos for purposes prohibited on national territory.
Both applicants filed a complaint to the Strasbourg Court contending that their rights under Article 8 had been violated.
In its preliminary observations, the Court notes that the present case shows similarities to the earlier case of Pejřilová v. the Czech Republic. There, the Court held that the Czech ban on posthumous artificial insemination did not constitute a violation of Article 8 as a wide margin of appreciation should be afforded to the State due to the moral and ethical sensitivity of the issue at stake. Three aspects of Baret and Caballero allow it to be distinguished from the Czech case, however. First, Pejřilová concerns the Czech ban on posthumous insemination on national territory, rather than the transfer of gametes or embryos to another country that allows posthumous assisted reproduction. Second, Baret and Caballero involves not only gametes but embryos as well, which – according to the Court – shows a more committed parental project. Lastly, both applicants in Baret and Cabellero have their deceased husband’s explicit written consent to use the gametes or embryos to conceive a child using posthumous MAR.
In Baret and Caballero, the Court considers that the prohibition of transferring gametes or embryos to Spain interferes with the right to procreation and to recourse to MAR to exercise that right under Article 8. To assess this interference, the Court continues to address the legal basis for the prohibition as laid down in articles L. 2141-2 and L. 2414-11 of the French Public Health Code. Administrative case law illustrates that the interpretation of this absolute ban can be called into question, as the Conseil D’État decided in the case of Gonzalez Gomez, based on its in concreto proportionality review, that the circumstances of that particular case did breach Article 8. However, the Court finds this insufficient to render the interpretation by the domestic court or the application of the law unforeseeable or arbitrary.
In France, to resort to assisted reproduction, the ‘parental project’ as well as the consent of both partners need to be validated, which aims to guarantee respect for human dignity and achieve a fair balance between the interests of the parties involved in the MAR project. Therefore, the Court finds that the ban is legitimate as the Public Health Code’s aims of ‘protecting the rights and freedoms of others’ and ‘protecting morality’ are met.
With regard to the necessity of the interference in a democratic society, the Court balanced the applicant’s interests in their pursuit of the parental plan they made with their deceased spouses against the general moral and ethical interests that French law aims to safeguard. The Court notes – as it did in Pejřilová – that a wide margin of appreciation should be afforded to the State given the ethical sensitivity of the issue at stake and the lack of a European consensus on posthumous reproduction. The French legislator has attempted to reconcile the tension caused by the public desire to broaden access to MAR despite social resistance to posthumous conception. The simultaneous expansion of MAR to single women and lesbian couples while prohibiting the exportation of gametes or embryos for posthumous reproductive purposes is the result of the wish to strike a balance between competing interests in the light of the aim pursued by the legislature, specifically that of preventing a form of ‘ethical dumping’ (§86).
Furthermore, in its ruling the Court stresses that even though the law has been found compatible with the requirements of Article 8, this did not dispense the Conseil D’État from an obligation to examine of the effects of the law as applied in the disputed circumstances. Based on the previous case of Gonzalez Gomez, the Conseil D’État concluded these particular circumstances did not justify the law not being applied, given that the applicant’s sole aim was to circumvent the French law. The Court found no legitimate reason to depart from this conclusion. The applicants had no link with Spain and the consent of the deceased husband to the procedure or the presence of an embryo was not sufficient to find that there had been an excessive infringement with their right to respect for their wishes (§88). The Court concludes by arguing that the margin of appreciation has not been exceeded and that Article 8 has not been violated.
In the introduction to his concurring opinion, Judge Ravarani is spot-on in stating that he feels ‘profoundly uneasy about the situations faced by the applicants in the present case.’ Aside from the ethical and moral questions that are raised by this denial, Ms. Baret and Ms. Carabello are left with empty hands, an unfulfillable wish to have children with their lost loved ones and a significant amount of drained resources. This ruling illustrates that at times the Court continues to refrain from taking a position on pressing issues regarding reproductive rights under Article 8 by hiding behind a ‘wide margin of appreciation.’ In the commentary to follow, I reflect on the Court’s considerations regarding the French ban on posthumous reproduction making particular reference to certain concerns highlighted by the concurring opinion of Judge Ravarani.
First, with regard to the ‘legitimate aim to protect the rights and freedoms of others’ – in this case, those of the unborn child – Judge Ravarani rightly points out that, aside from this situation being extremely hypothetical, the Court previously decided in the case of Vo v. France that the unborn child does not yet have a personality, nor interests of its own. It should also be noted that unlike in the case of Vo, the present cases do not involve an unborn child as in that is conceived yet unborn, but a future child that is (yet) to be conceived. How can protecting the interests of a non-existent child based on an extremely hypothetical situation serve a legitimate purpose?
Although the Court does refer to the case of Vo, this is merely to point out that the French legislature, in striking a fair balance between interests at stake, did not exceed its margin of appreciation under Article 8 by not distinguishing between requests for artificial posthumous insemination with sperm and requests for post-mortem embryo transfer (both are absolutely forbidden). According to the Court, the refusal to make this distinction illustrates that the discussion to (not) allow posthumous MAR is ethically sensitive and complex and that – after all – the embryo is not recognized as an autonomous subject of law. However, this is not in line with the preliminary observation of the Court that the fact that one of the cases involved embryos demonstrates a more committed parental project (see also: Parrillo v. Italy). It is remarkable that the Court seems to accept that the interests of an unconceived, unborn child are worth protecting, while the interests of an embryo – inextricably connected to the identity of the persons involved in the intended parental project at stake – are dismissed outright.
Another issue – also addressed by Judge Ravarani – is that the ban aims to prevent ‘that the identity of the unborn child will be affected by the fact that, once born, it will be fatherless’ (§55). Given that the Bioethics Act (2021) opened access to MAR for lesbian couples and single women, this aim seems particularly meaningless, as does its legitimacy. It is worth mentioning that in case of lesbian couples and single women using gametes of third-party donors, the child will have a living father rather than a father who passed away. Yet this should lead to a debate on how ‘fatherless’ should be defined – given that a third-party sperm donor will probably also not be present in the child’s life – rather than to the adoption of different legal approaches for situations that have the same outcome: the child will grow up in the absence of a biological father.
The French government argued the prohibition did not prevent the applicants from being able to exercise their right to become a genetic mother with a third-party donor’s gametes (see also: Dickson v. the United Kingdom). Not only is this incoherent regarding the outcome for the child in terms of a ‘present father’, it would also be disproportionate in light of the family’s circumstances. Ms. Caballero and her deceased husband already have two children who are genetically related to them. The absolute prohibition to use the embryos for posthumous reproductive purposes not only deprives the applicant of the possibility to conceive a child that is genetically related to her deceased husband, but it also deprives the unborn child of having the same biological father as its siblings. In fact, it requires that the unborn child is not genetically related to the deceased husband/father, or else it cannot be conceived. If the French legislator legitimately aims to protect the interests of the unborn child: how would the knowledge that it is not genetically related to its siblings on the fraternal side, but to a third-party sperm donor, affect the child’s identity? Moreover, would permitting such a parental project not result in more complexities and ethical questions about the concept of ‘family’ under the French law?
Lastly, the absolute ban also aims to guarantee human dignity by requiring the validation of free and informed consent of both partners for assisted reproduction, which would be complicated by the death of one partner and the bereavement of the other. In the present cases, the French government argued that the consent to assisted reproduction given during the husband’s lifetime would no longer be free and informed once the MAR is initiated after his death, without the man having had the opportunity to revoke it (§55). It should be noted that both husbands have provided their written and explicit consent for the posthumous assisted procreation. It remains unclear on what grounds it would be necessary to provide the opportunity to revoke this consent, as it clearly addresses the posthumous nature of the assisted reproduction project. Yet, the Court fails to address the free and informed consent and simply accepts the legitimacy of the aims pursued by the French legislation (§76) in reference to Evans v. the United Kingdom (§89) and Pejřilová v. the Czech Republic (§52). In these cases, the Court particularly points out the importance ‘that every person donating gametes for the purpose of such [IVF] treatment would know in advance that no use could be made of his or her genetic material without his or her continuing consent.’ From that perspective, it is remarkable that the Court does not consider the written and explicit consent of both husbands in the present cases.
Interestingly, in the case of Petithory Lanzmann v. France regarding the refusal to transfer gametes of the applicant’s deceased son to have posthumous insemination performed in Israel, the French court did address the absence of an informed consent. While the Strasbourg Court declared the application inadmissible on the grounds that Article 8 does not guarantee a right to become a parent, it does refer to the ruling of the national court: the documents had not shown that the son was involved in a parental project, neither that he had expressed a desire for his gametes to be used for posthumous artificial insemination, nor that he had given his mother permission to use his gametes for this purpose. Puzzlingly, while the national judgement in Petithory Lanzmann implied that the ruling could be different if the son had given free and informed consent, the cases of Baret and Caballero suggest that the standards of free and informed consent are an impossible standard in posthumous MAR.
In short, the Court’s considerations regarding the present cases of Baret and Caballero has invoked interesting points for – another – discussion. In particular, the legitimacy of the aims ‘to protect the rights and freedoms of the unborn child and to guarantee human dignity’ that underlie the French ban on posthumous reproduction raises questions about the (legal) status of the unborn child versus the embryo, the child’s identity in terms of being born ‘fatherless,’ and the importance of free and informed consent for artificial (posthumous) reproduction. More importantly, it seems that the Court has found itself trapped in the notion of ‘wide margin of appreciation’ that should be afforded to States in case of ethical and moral issues that lack consensus within the European legal landscape. It is a trap from which Baret and Caballero are suffering the unfortunate and sorrowful consequences. It is also a trap that the Court will inevitably fall into again if they continue to refrain from taking a stance regarding reproductive rights under Article 8.