On November 12, 2015, the State Counsel refused the request of a 35-year-old woman to obtain information concerning her biological father. Conceived by artificial insemination with donor sperm, Audrey Kermalvezen, has been fighting a judiciary battle for years to obtain a partial lifting of the confidentiality of her birth background. The young woman appealed to the administration in 2009 after having discovered, at age 29, that she had been conceived by artificial insemination.
But she was continuously confronted with the refusal of the Public Assistance – Paris Hospitals, since French law protects donor anonymity. Her requests being refused by the administrative court, then by the court of administrative appeal, she seized the highest administrative jurisdiction, arguing that the French law violated Article 8 of the European Convention on Human Rights on “right to the respect of private and family life”.
In a 1992 judgment, the European Court of Human Rights (ECHR) reiterated that people in the position of an applicant “have a vital interest in obtaining information which is indispensable for discovering the truth of an important aspect of their personal identity”.
In its judgment, the State Counsel concluded that the anonymity of sperm donors, as provided by French law, “is not incompatible with the European Convention on Human rights”, and that “the rule of anonymity meets the objective of protecting the donor’s private life”.
The State Counsel adds that this rule « does not entail in itself any invasion in the private and family life of the person thus conceived, especially as it is for the parents alone to decide whether or not to unveil the confidentiality on the conception”.
Nevertheless, it has been recalled that there are exceptions to the confidentiality, notably for doctors to access data, in cases of therapeutic necessity, or for preventive measures, especially in the case of a couple both born from donated gametes who wish to insure that they do not have the same donor. This is exactly the case for Audrey and her husband, also « born from unknown spermatozoid ». The applicant pointed out the potential risk of consanguinity.
She has thus been refused in spite of another point of major importance: the State Counsel stated that if the administrative jurisdiction rejected her request to access this information, it’s on the grounds that she had presented it directly and not by the intermediary of a doctor, which made it impossible for them to comply with her request.
Audrey Kermalvezen denied this point and explained that when she formulated her request before the Public Assistance-Paris Hospitals, to have the confidentiality lifted, she specified that the data should be given to her “or else to a doctor she had named”.
Mme Kermalvezen announced her intention to file an appeal in Strasbourg at the ECHR. If the non-conventionality were established, the legislator should review his position, but the lifting of confidentiality will most certainly only concern children to be born.
