Posthumous Insemination

> The decision in French

Judgment Summary

•    Bringing the matter through the emergency relief procedure (« référé-liberté »), the applicant challenged the refusal by the French administration to export to Spain the gametes of her deceased husband, in order for her to proceed to a posthumous insemination, which the law of that country allows ;
•    The Conseil d’Etat’s decision provides that the interim relief judge may review an administrative decision in the light of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) ; in such a case, it is his responsibility to proceed to a twofold review and to be satisfied that:
•   The general rule established by the law is compatible with the Convention (review in abstracto) ;
•   The implementation of the law does not lead, in the particular situation of the applicant, to an excessive infringement of the rights guaranteed by the Convention (review in concreto).
•    The Conseil d’Etat holds that the two prohibitions under French law of posthumous insemination and export of gametes stored in France for the purpose of a posthumous insemination are compliant with the ECHR ;
•    It considers, however, that in the specific case of the applicant and her deceased husband, whose illness prevented the couple from achieving their plan to have a baby by depositing some gametes in Spain for the purpose of a posthumous insemination, the implementation of the French legislation would lead to manifestly disproportionate consequences (“conséquences manifestement disproportionnées”);
•    It therefore orders that the gametes be exported to Spain.

Facts and Procedure

Mrs. A. and M. B., wife and husband, together decided to take precautions to further their desire to give birth to a child. Given that the treatment of M. B’s illness carried a risk of making him infertile, he proceeded, as a precaution, to provide sperm to submit the gametes in the center for the study and storage of eggs and sperm of the Tenon Hospital, intending to benefit later from medical assistance for procreation. Yet, this project, as it was initially conceived, was derailed by the rapid deterioration of M. B.’s health condition, followed by his death on July 9th, 2015.
Before his death, M. B. had explicitly consented that his spouse should, after his death, proceed with their plan in Spain, Mrs. A.’s country of origin, which authorizes posthumous insemination. After the death of her spouse, Mrs. A., who had returned to live in Spain, therefore asked the French administration to allow her to export her husband’s gametes to allow the conception of the child in Spain. Her request was rejected, on the ground of the prohibition of posthumous insemination contained in the French legislation.
Mrs. A. challenged this refusal before the interim relief judge (“juge du référé-liberté”) of the administrative tribunal of Paris, who declined to accede to her request. She then decided to bring the matter before the Conseil d’Etat.
Under Article L. 521-2 of the Code of Administrative Justice, the emergency procedure allows the judge, in the time limit of forty-eight hours, to order all measures necessary to protect a fundamental liberty allegedly infringed by a manifestly unlawful and seriously harmful decision (“atteinte grave et manifestement illégale”). To prevail, the applicant must prove that he faces an emergency situation that justifies a judicial intervention within forty-eight hours. The applicant may challenge before the Conseil d’Etat the decisions issued by the interim relief judge in the administrative tribunals. 

Legislation

In France, the laws on bioethics allow medical assistance to procreation only to remedy infertility of a couple or to avoid the transmission of a particularly serious disease. In order for the couple to benefit from such procedure, they have to be alive and of reproductive age. The separation of the couple or the death of either one of them prevents the other from pursuing alone the project of conception. In addition, Article L. 2141-11-1 of the Code of Public Health prohibits the exportation of gametes stored in France for a use that would go against the bioethics principles of the French legislation.
In Spain, to the contrary, posthumous insemination for the benefit of a widow is allowed in the twelve months following the death of her husband, if the latter gave his consent prior to his death. 

Decision of the Conseil d’Etat

1. The Conseil d’Etat first clarified the role of the administrative judge.
Overruling its prior case law, the Conseil d’Etat has, on the one hand, considered that the interim relief judge, acting within the scope of procedures authorizing emergency relief, may review the legality of an administrative decision in the light of international conventions, particularly the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
The Conseil d’Etat next held that this review must follow a two-step analysis. First, the judge should determine if the general rule established by the law and the balance it requires are, as a whole, compatible with the Convention (review in abstracto).
Second, even if the law, as a whole, is compatible with the Convention, the judge must check that its implementation in the particular situation of the case does not lead to an excessive infringement of the fundamental rights at issue (review in concreto). Indeed, the Conseil d’Etat holds that, even when a law is compatible with the Convention, its implementation can, in some special circumstances, lead to manifestly disproportionate consequences and so infringe the rights guaranteed by the by the Convention. The judge must therefore determine concretely whether the implementation of the law, according to the objectives pursued, does not, in the particular case at issue, excessively infringe such rights.

2. In this case, Mrs A. argued that denying the export of the gametes was incompatible with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which guarantees that “Everyone has the right to respect for his private and family life”.
The Conseil d’État held first that the French legislation, taken as a whole, was not incompatible with this Article: regarding those bioethical matters, the margin of appreciation granted by the Convention to the states is wide and both the prohibition to perform a posthumous insemination and the prohibition to export for this purpose the gametes stored in France falls within the State’s margin of appreciation.
Exercising subsequently its review in concreto, the Conseil d’État noted that the current situation of Mrs A. results from the illness and the sudden deterioration of Mr. B’s health condition, which prevented the spouses to carry out their carefully considered plan to have a child and, in particular, to deposit some gametes in Spain as well, a country which allows posthumous insemination. In those circumstances, Mrs. A., who came back to Spain to live there without the intention to bypass the French law, now faces a situation in which the exportation of the gametes stored in France is the only way for her to exercise her right under Spanish law.
The Conseil d’État accordingly concludes in this instance that the export of the gametes denied to Mrs. A. on the basis of the French law jeopardises, in the light of all the particular circumstances of the case, in a manifestly excessive way the claimant’s right to respect for his private and family life. Therefore, the Conseil d’État ordered that the Assistance public-Hôpitaux de Paris, to which the Tenon Hospital belongs, and the Agence de la biomedicine, responsible for issuing the export license for the gametes, take all necessary steps in order to allow the exportation of the gametes to Spain.