The European Court of Human Rights in Strasbourg has ruled that France’s ban on exporting sperm and embryos to Spain, which allows posthumous insemination, does not violate the Human Rights Convention.

The judgment found 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.

Exporting sperm

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 (14 September) 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. It also found 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”.
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.

Prohibition on export

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 they concerned the prohibition on posthumous embryo transfer, reiterating that an embryo did not have independent rights or interests.

Female couples

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.

Under Articles 43 and 44 of the Convention, the judgment is not final and may be referred to the Grand Chamber of the Court during the three-month period following its delivery.

Under articles 43 and 44 of the convention, the judgment is not final and may be referred to the Grand Chamber of the Court during the three-month period following its delivery.

If such a request is made, a panel of five judges will consider whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment.

If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.