The ECHR (European Court of Human Rights) has issued a judgement on the sensitive issue of post mortem assisted reproduction and the export of gametes or embryos.
The facts
Two recently widowed women, have lodged an appeal with the ECHR concerning the prohibition in France of post-mortem assisted reproduction, and its corollary: the refusal to export gametes or embryos preserved in France to a State which performs this type of MAR.
“Post mortem assisted reproduction (after death) consists in undertaking medically assisted reproduction after the death of one of the members of the couple.
From the first bioethics law, post mortem assisted reproduction was rejected by the legislator. The public health code specifies: “The man and woman forming the couple must be living, must be of reproductive age and must consent beforehand to the transfer of embryos or to the insemination”. During the latest bioethics law, the subject gave rise to much discussion. The government view, to maintain the prohibition, was finally adopted, and the prohibition is therefore maintained in France. A few rare states, in particular frontier states like Belgium and Spain authorise it.
In the two cases examined by the ECHR, a woman was asking for the transfer of her frozen embryos, conceived with the sperm of the father, who had since deceased. The other woman, wanted to transfer the frozen sperm of her husband, who was also deceased.
In both cases, the preservation centres refused their exportation. The public health code stipulates in article L2141-18: “The importation and exportation of gametes or germinal tissues from the human body are subject to authorisation from the Biomedicine Agency.” Moreover, “The preservation of gametes or germinal tissues is terminated in the event of decease of the person.” The courts, up to the State Council, confirmed this refusal to export, which the claimants are challenging, whence their application to the ECHR for violation of article 8 of the Convention (right for the respect of privacy and family life). The State Council, in both of these cases, considered among other things that the exportation requested was intended simply to circumvent the French prohibition for post mortem MAR, as the two women had no links at all with Spain.
The arguments in the debate on post mortem assisted reproduction
The latest parliamentary debates on this issue reflected the arguments “for” and “against” the subject.
For those supporting authorisation, in principle, the woman alone may and should decide what she wishes to do. In that view, procreation is an individual right without any consideration of the biological reality which invariably involves a man and a woman. Following the authorisation granted in 2021 for MAR for single women, it would, according to its supporters, be contradictory to authorise a widowed woman to conduct a MAR with the sperm of an anonymous donor whilst prohibiting her from using that of her deceased husband.
For those who remain against post mortem assisted reproduction, the decease of the biological father marks the end of any “parental project” for the couple. Additionally, in its report submitted in 2018 at the moment when the bioethics laws were being revised, the State Council mentioned other difficulties. The fact of being brought up by a single parent is a “vulnerability in itself”. The fact of “being born in a mourning context is a situation which could mark the “identity narrative” of the child, necessarily impacted by the death of the father”. Thirdly, “in such a context, it may also be difficult to create the conditions for a calm and collected decision on the part of the mother, as her decision could be influenced by family pressures and by the impact of her very recent loss”. Finally, from a legal standpoint, the authorisation of post mortem MAR would involve “amending the filiation rights and the inheritance rights in order to fully include the child in the descendance of the deceased”. Indeed, preserved embryos and gametes are not “subjects in law”.
Decision by the ECHR
By unanimous decision, the Court declared that “there was no violation of article 8 of the Convention”. In its reasoning, the Court considered that interference in private life had indeed occurred but that such interference was legitimate. On the one hand, the prohibition of post mortem assisted reproduction was stipulated in the law, and therefore known to the claimants. On the other hand, such interference corresponds to “the legitimate aims for the “protection of the rights and liberties of others” and the “protection of morality“, others in this case being the better interests of the unborn child.
Moreover, the ECHR noted “This prohibition is the result of a political choice dating back to the first bioethics law in 1994 and has been constantly reiterated at each of its periodic revisions, as well as recently, in 2021, in the context of in-depth legal debates. The ECHR noted that the legal process led to maintaining the status quo, in view of the specific ethical stakes associated with post mortem procreation. It recalled that when questions of general policy are at stake, in which deep divisions may reasonably exist in a democratic state, it is important to grant particular importance to the role of the national decision makers. All the more so when, as in this case, it is a question affecting society.”
However, the ECHR added: “In spite of the wide margin of appreciation afforded to the States concerning bioethics, the legal framework established by these States must be consistent”. Implicitly, the Court is questioning the consistency of the current procedure following the legalisation of assisted reproduction for single women.
This additive was criticised by one of the seven judges on the case, who considered that “it goes beyond the role of the judges in the case concerned and that, through confusion and muddling it contributes to indicating something to the French State, which goes beyond the bounds of the case, without any need for the Court to substitute for the legislator.”
More fundamentally, the technical devices for assisted reproduction further anchor the gametes and embryos in a status of goods, which may be exportable or not according to the legislations or a decision by judges.
According to Alliance VITA, the best interests of a child cannot be to be deliberately conceived as an orphan.
These requests for post mortem MAR show that the trend towards a “right to a child” has been under way for years, fed by a logic where “the supply generates the need”. The desire for post mortem assisted reproduction exists only because it is technically possible. This feeds into a vision of omnipotence, whose finality is to do away with time and death.
