CEDH · CASELAW;CLIN;ENG — 12 novembre 2019

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France (dec.) - 23038/19 Decision 12.11.2019 Article 8 Article 8-1 Respect for family life Respect for private life Refusal to allow a deceased man’s sperm to be exported at the request of a parent wishing to become a grandparent or continue the family line: inadmissible Facts – The son of the applicant (Claude Lanzmann’s widow) died in 2017 at the age of twenty-three as a result of a malignant tumour diagnosed in 2014. As soon as he was informed of his illness he had taken steps in order to become a father and have offspring even in the event of his death. He had therefore banked sperm with a French hospital and had contacted a healthcare establishment abroad with a view to artificial insemination. Following the death of her son the French medical authorities refused the applicant permission to have her son’s gametes transferred to a country which permitted their use post mortem for the purposes of medically assisted reproduction or gestational surrogacy. The applicant made an urgent application to the Administrative Court, alleging a “serious and manifestly unlawful” infringement of a fundamental freedom. The judge rejected her application on the grounds that the said conditions for such an application were not met. In particular, the judge ruled that the statutory prohibition on the export of gametes in such cases pursued the legitimate aim of preventing domestic law from being circumvented and fell within the margin of appreciation available to each State in applying the Convention. Furthermore, it had not been demonstrated that the wish expressed by the applicant’s son had been part of a specific plan to become a parent, or that he had consented to the use of his gametes after his death. In the applicant’s view, the prohibition in question was not justified either in the light of changes within society and the family or in the light of the interests of the unborn child, who would have one or more relatives capable of taking care of him or her and passing on the personal memories of the Lanzmann family. Law – Article 8: The applicant’s complaint concerned her inability to export the gametes of her deceased son and to have artificial insemination carried out after his death, in accordance with his wishes, in a State which permitted the practice, in order to perpetuate the memory of the Lanzmann family. For the purpose of its analysis the Court divided the applicant’s complaint into two parts, according to whether she claimed to be a direct or an indirect victim. (a)   Complaint asserting the deceased’s rights   – What happened to the gametes banked by an individual, and the issue of compliance with his or her wish for them to be used after his or her death, corresponded to that person’s right to decide how and when to become a parent. However, that right belonged to the category of non-transferable rights. Accordingly, the applicant could not claim victim status on behalf of her late son. Conclusion : inadmissible (incompatible ratione personae ). (b)   Complaint asserting the applicant’s own rights – It was true that the notion of private or family life embraced the right to respect for the decision to become a parent in the genetic sense; moreover, the right of couples to have recourse to medically assisted reproduction constituted a form of expression of that notion. However, Article 8 of the Convention did not guarantee the right to found a family. In the instant case, in dismissing the applicant’s claims, the domestic judge had found, firstly, that the prohibition at issue was not incompatible with the Convention, in view of the aim pursued by medically assisted reproduction under French law (that is to say, solely to remedy clinically diagnosed infertility in couples). Secondly, the judge found that there was no evidence in the file that the son had given his mother permission to make use of his gametes after his death. The Court saw no reason to take a different position. The Court was likewise not persuaded by the applicant’s emphasis on her wish to prevent the memory of the Lanzmann family from being lost. However worthy her personal aspiration to continue the family line, the fact remained that under the Court’s current case-law Article 8 of the Convention did not encompass a right to become a grandparent. Conclusion : inadmissible (incompatible ratione materiae ).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes