Legal summary
October 2023
Chane-Yook v. France (communicated) - 57550/22
Article 8
Article 8-1
Respect for private life
Prohibition on transfer of gametes abroad for the purpose of medically assisted reproduction after relevant age-limit reached: communicated
[This summary also covers the communicated case L.R. v. France (8297/23), 25 September 2023]
In 2015 and 2017 respectively, the applicants – then aged 39 and 40 respectively – had their gametes frozen in order to preserve their fertility.
In 2021 the principle of a legal age-limit for access to medically assisted reproduction (MAR) was introduced. The age-limit was set at 45 for the uses the applicants were considering (Article R. 2141-38 of the Public Health Code).
In June 2022 the establishment where their gametes were stored requested authorisation to export them, for the purpose of MAR, to an establishment located in Spain, where no such age-limit was imposed. The Agency of Biomedicine refused, citing the age-limit.
The applicants’ urgent applications for interim measures were unsuccessful. Ruling on appeal in October 2022 the Conseil d’État took the view, on a general level:
– that, according to the most recent scientific research (as presented in the two opinions of the Agency of Biomedicine issued in 2017 and 2021), the health risk for the child and the mother increased with the mother’s age at the time of pregnancy, particularly from the age of forty; that, this being so, the principle of an age requirement for undergoing medically assisted reproduction did not disproportionately interfere with the rights protected by the Convention, any more than did the legal prohibition on the transfer of gametes abroad, which aimed to prevent any attempt to circumvent French MAR laws;
– that by setting the age-limit at the forty-fifth birthday of the woman intending to bear the child, having regard to the health risks linked to age and the interests of the unborn child, the Prime Minister had not instituted a manifestly unlawful rule.
As to the applicants’ particular circumstances, the Conseil d’État found:
– that they had French nationality and had no links with Spain; and that their requests for authorisation to move their gametes to that country were based solely on the possibility of partaking in medically assisted reproduction there, after reaching the age-limit set by French law;
– that neither the fact that the health of one of the applicants in recent years had been incompatible with pregnancy, nor the favourable view of the other applicant’s project taken by her doctors, sufficed to establish an undue interference with the right to respect for private and family life.
The applicants submit that the age-limit set by France in this regard does not correspond to any European consensus. The applicant L.R. also complains that the new law was applied abruptly, without transitional provisions having been made for ongoing deposit agreements and without the Agency of Biomedicine’s having informed the women concerned.
Communicated under Article 8 of the Convention (private life).
(See also: concerning the institution of age-limits for medically assisted reproduction, Lia v. Malta, 8709/20, 5 May 2022; concerning the prohibition on the export of gametes with a view to posthumous use prohibited by the country of origin, Baret and Caballero v. France, 22296/20 and 37138/20, 14 September 2023, legal summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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