European Court upholds prohibition on posthumous insemination in France


European Court upholds prohibition on posthumous insemination in France

Thursday, 14 September, 2023

In the case of Baret and Caballero v. France, the European Court of Human Rights (ECHR) rendered a unanimous decision, holding that France had not violated Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life. Both applicants, Ms. Léa Baret and Ms. Laurenne Caballero, sought the export of gametes and embryos from their deceased husbands to Spain for posthumous medically assisted reproduction (MAR). French law prohibited such an act.

The Court found that while the prohibition indeed impacted the applicants' private life and interfered with their right to attempt to have children through MAR, the prohibition served the legitimate aims of “the protection of the rights and freedoms of others” and the "protection of morals." The Court added that the absolute nature of the prohibition on posthumous insemination in France was a political choice and that significant weight should be given to domestic policy-makers on social issues connected to moral or ethical considerations. The Court further noted that the prohibition aimed to avoid the risk of circumventing the Public Health Code, which had outlawed the practice domestically. This rationale remained consistent, even after the passage of the Bioethics Act of 2 August 2021, which tried to balance broadening access to MAR with ethical considerations concerning posthumous conception. As for the prohibition on posthumous embryo transfer, the Court upheld that embryos did not possess independent rights or interests. The prohibition was derived from the same ethical and moral considerations that governed the prohibition on posthumous insemination. 

In summary, the Court concluded that the French authorities had struck a fair balance between the applicants' personal interests and the general-interest grounds connected to ethical considerations. It also noted that the Conseil d'État, the highest administrative court in France, had conducted its review in compliance with the ECHR's methodology and found no reason to deviate from the domestic court's findings. Consequently, the Court held that there had been no violation of Article 8 of the European Convention on Human Rights. Nonetheless, the Court acknowledged that the 2021 revision of the Bioethics Act, which extended the right to MAR to female couples and single women, reinvigorated the debate on the prohibition that the applicants contested. However, the judgment did not alter or overturn the existing prohibitions.

While this Chamber judgment is not final and is subject to potential referral to the Grand Chamber of the Court, it serves as a compelling analysis of the tension between individual rights to MAR and broader ethical considerations. It also underscores the considerable weight given to domestic authorities in matters involving sensitive ethical dilemmas, especially when these are encapsulated in legislation after thorough public debate. This case adds to the growing body of jurisprudence concerning MAR and bioethical considerations and will likely serve as a reference for future cases grappling with similar complexities.

Dr Christoph Kerres LLM (Georgetown)

For more legal information please contact Mr Kerres via tel +43 (1) 516 60 or e-mail

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