CEDH · CASELAW;CLIN;ENG — 7 septembre 2023

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France - 21424/16 and 45728/17 Judgment 7.9.2023 [Section V] Article 8 Positive obligations Article 8-1 Respect for private life Refusal to allow persons born through medically assisted reproduction involving a third-party donor to access information about that donor, under the rule guaranteeing anonymity in gamete donations: no violation Facts – The applicants, who were born in 1980 and 1989 respectively through medically assisted reproduction involving a third-party donor, were refused permission by the national authorities to obtain information about the identity of their respective donors, or non-identifying material about them, pursuant to the principle of anonymity in gamete donations. This principle of anonymity, introduced by the Bioethics Act of 29   July 1994, had made it absolutely and definitively impossible for persons conceived through gamete donation to discover the identity of the relevant biological parent or to obtain non-identifying information about him or her. There were only two exceptions, restricted to doctors, in the event of therapeutic necessity or where the donor was diagnosed with a serious genetic anomaly. The Bioethics Act of 2   August 2021 put an end to this absolute confidentiality. From its entry into force on 1   September 2022 all gamete donations became conditional upon the donors’ express consent to having records kept of their identity and of non-identifying information about them (age, physical characteristics, family and occupational status, country of birth, reasons for donating). Those data were disclosed to persons conceived through medically assisted reproduction if they made a request to that effect to the Commission on Access to Third-Party Donor Data for Persons Born through Medically Assisted Reproduction ( Commission d’accès des personnes nées d’une assistance médicale à la procréation aux données des tiers donneurs – CAPADD). Children born from gametes donated prior to that date, as the applicants had been, could apply to the CAPADD, which was responsible for contacting the third-party donors in order to obtain their consent to the disclosure of the relevant information. Donors could also contact the CAPADD of their own accord to consent to the disclosure of those data. Law – Article   8: (1) Victim status – It was true that since 1   September 2022 the applicants had been entitled to apply to the CAPADD to obtain information, where possible, about their biological parent. The first applicant had applied in this way, and had recently been informed that her request was definitively refused. However, the option in question had come into existence more than twelve years after the applicants’ request for access to information about their origins, and long after the domestic courts had ruled on the alleged violation of the Convention. Neither in the domestic proceedings, nor before the Court had the national authorities expressly acknowledged that there had been a violation of the applicants’ rights under the Convention during the above period. Consequently, the Court considered that they could still claim to be victims within the meaning of Article   34 of the Convention. (2) Applicability – Article   8 of the Convention protected the right to know one’s origins. The right to respect for the choice to become or not to become a parent was also protected by Article   8, as such a choice was an expression of private and family life. That being stated, the Court did not consider it necessary in the circumstances of the present case to examine the “family life” aspect of the complaint since the “private life” limb of Article   8 appeared to cover all of the second applicant’s grievances. Conclusion : Article   8 applicable under its “private life” limb. (3) Merits – (a) Whether the cases concerned a negative or a positive obligation – When the applicants had applied to the domestic courts and, subsequently, to the Court, domestic law did not permit children conceived through gamete donation to know the identity of the third-party donor or to access non-identifying information about him or her. The applicants complained about the shortcomings in the national legal system which had resulted in the dismissal of their respective requests for such information. That complaint had therefore to be examined in the light of whether the respondent State had been under a positive obligation to secure to the applicants a right of access to information about their origins.   (b) Margin of appreciation – A comparative study of twenty-five States conducted by the Council of Europe showed that those States were divided on the question of access to information about personal origins for persons conceived through gamete donations, and that the criteria for accessing such information differed significantly within them. There was thus no European consensus in this area. Furthermore, the present case raised sensitive ethical and moral questions, and public interests were at issue. These considerations pleaded in favour of a wide margin of appreciation. However, an essential aspect of a person’s identity was at the heart of the present cases, since the right to obtain information necessary to discover the truth about an important aspect of one’s personal identity, such as the identity of one’s biological father, and for one’s personal development was a fundamental aspect of the right to respect for private life. As early as the 2000s the Court had stressed the importance of the right of access to information about one’s biological origins. In addition, domestic law in a number of Member States, including France, had evolved and there was a recent trend towards lifting the anonymity of gamete donors. This was corroborated by the work of the Parliamentary Assembly of the Council of Europe and the European Committee on Legal Co-operation (CDCJ). Lastly, scientific and technological advances, and in particular the development of “recreational” DNA testing, which meant that it was no longer possible to ensure the anonymity of gamete donors, had to be taken into consideration. It followed from these findings that the respondent State enjoyed a wide margin of appreciation in choosing the means by which to ensure effective respect for the applicants’ private life. That margin was nevertheless reduced by the fact that an essential aspect of personal identity was at the very heart of the present applications. (c) Compliance with Article   8 – The absolute principle of anonymity in gamete donations introduced in 1994 had lasted until 1   September 2022, when the system for accessing information about personal origins under the Bioethics Act of 2 August 2021 came into force. Persons born from gametes donated prior to its entry into force could avail themselves of this system provided the donors’ consent could be obtained, that they and their files could be located, and that the human and financial resources to do so were available. The question arose as to whether, in dismissing the applicants’ requests for access to the identity of the third-party donors and to non-identifying information about the latter on the basis of the principle of anonymity in gamete donations, and regard being had to the margin of appreciation enjoyed by it, the respondent State had breached its positive obligation to ensure respect for the applicants’ private life. In that connection, the Court had to verify whether, in view of the grounds relied upon by the domestic courts and those adduced by the Government, the respondent State had weighed up the public interest against the interests of the applicants in a satisfactory manner. As a preliminary observation, the Court noted that the domestic courts had emphasised on several occasions that the applicants’ requests called for profound changes to civil law and the legislation on reproductive issues, which were first and foremost matters for the legislature. The Court reiterated that where matters of general policy were at issue, on which opinions within a democratic society could reasonably differ widely, the role of the domestic policy-maker should be given special weight, especially where a social issue was concerned, as in the present case. This issue also implied having regard to the circumstances specific to the situation of individuals (such as the applicants) from the perspective of their right to respect for their private life, in particular of their right to access information about their origins, protected under the Convention, as forming part of the vital interest in obtaining information necessary to discover the truth concerning an important aspect of their personal identity. The Court would accordingly examine whether the legislative choices that had given rise to the alleged violation and their impact on the applicants had amounted to a breach of the State’s positive obligation to ensure effective respect for their private life. Firstly, the situation complained of by the applicants arose from decisions taken by the legislature after very detailed and high-quality debates, including public consultations in which all points of view had been considered and the interests and rights at stake had been weighed up as evenly as possible.   The State had regulated medically assisted reproduction since 1994. It had treated gamete donation as comparable to all donations of body parts and products, within a general legal framework based on the principles of anonymity and gratuity of making such donations. Those choices had subsequently been repeated in 2004 and again in 2011 after pre-legislative consultations on whether the anonymity of third-party donors was compatible with the right of access to information about personal origins. There was no European consensus on whether to grant persons born through gamete donations a right of access to information about their personal origins, merely a recent trend in its favour; this did not enable the Court to rule that individuals in the applicants’ situation, like those born to an unidentified person (“ sous X” ), ought to have been provided with an earlier opportunity to apply to a commission on access to information about one’s origins. Furthermore, the Court had held in the Odièvre v.   France [GC] judgment that the possibility of applying to such a body was enough to convince it that no violation of Article   8 had occurred. Lastly, the claims of persons conceived through gamete donation were being increasingly acknowledged as legitimate and were supported by the Court’s case-law to the effect that a mechanism for access to information about one’s origins had to allow for a weighing up of the rights and interests at stake. There was also greater awareness that fears of a drop in gamete donations were groundless, that preserving donor anonymity was now moot in view of advances in the relevant procedures, and that there was, in consequence, a need to establish a legal framework for communication of the information in question. Extremely fraught debates had preceded the enactment of the Bioethics Act of 2   August 2021 and the search for a consensus on the arrangements for implementing the reform and acknowledging the right of access to information about one’s origins. The legislative process had thus demonstrated how sensitive and complex a matter it was to institute such a right. The Court concluded from the above considerations that the legislature had duly weighed up the interests and rights at stake after an informed and gradual process of reflection on the need to lift donor anonymity. The legislature had acted within its margin of appreciation, admittedly reduced by the fact that an essential aspect of the applicants’ private life had been at issue. Accordingly, the respondent State could not be criticised for the pace at which the reform had been enacted or for having been slow to agree to it. Secondly, non-identifying medical information – access to which was, in the applicants’ complaint, excessively restrictive – was also covered by absolute anonymity as to the donor and by medical confidentiality, subject to the derogations provided for in respect of doctors. Respect for the confidentiality of health data was a vital principle in the legal systems of all the Contracting Parties to the Convention. Moreover, although the right to health was not as such among the rights guaranteed under the Convention or its Protocols, the Contracting Parties had a positive obligation to take appropriate measures to protect the life and health of those within their jurisdiction. Similarly, the right of effective access to information concerning health and reproductive status was linked to private and family life within the meaning of Article   8. That being stated, in the present case, at the time that the applications had been lodged with the Court the principle of anonymity in gamete donations had not prevented doctors from obtaining access to medical information and disclosing it to individuals born through the relevant gamete donation in the event of therapeutic necessity. This included preventing the risk of consanguinity, considered by the applicants to be the main infringement of their right to health. In the same vein, the Conseil d’État had held in November   2015 that non-identifying medical information could be obtained as a preventive measure, specifically in the case of a couple where both partners had been born through gamete donations. In addition, the previous legislation had also provided that the donor could, in the event of diagnosis of a genetic disease, authorise his or her doctor to contact the gamete donation centre, so that it could inform the child born from the donation. Moreover, there was no European consensus on the disclosure of medical information and the right to be informed about one’s health. In the light of the above, and in the absence of sufficiently precise information in the files as to the tangible implications for the applicants of maintaining medical confidentiality, especially concerning the alleged link between the suffering caused by that confidentiality and knowledge of their medical history, the State had struck a fair balance between the competing interests at stake with regard to non-identifying medical information. Furthermore, the principle of this particular aspect of anonymity in gamete donations had never, with the exception of questions related to broadening access to the information concerned, and in contrast to the issue of the anonymity of one’s origins, been called into question during the successive legislative debates. Accordingly, the dismissal of the applicants’ requests, on grounds related to respect for medical confidentiality, had not constituted a breach of the State’s positive obligation to secure their right to respect for their private life. Thirdly, the applicants complained about shortcomings in the system introduced since 1   September 2022, namely the possibility of applying to the CAPADD in order to request the donor’s consent to the disclosure of his or her data. The Court did not underestimate the applicants’ fear that the donors might not be found, given the difficulty involved in finding their files, or that they might not consent to the disclosure of information about them, since they had been guaranteed absolute and definitive anonymity. The second scenario was in fact what had happened in the first applicant’s case. However, the legislature’s decision had grown out of a concern to respect the situations created by previous legislation. The Court did not see how it could have settled the situation differently. Accordingly, it considered that the respondent State had not overstepped the margin of appreciation enjoyed by it in choosing to grant access to information about one’s origins solely subject to the condition that the third-party donor gave his or her consent. In the light of all the above considerations, and regard being had to the State’s margin of appreciation, reduced though it may have been, the Court found that the respondent State had not breached its positive obligation to ensure effective respect for the applicants’ private life. Conclusion : no violation (four votes to three). (See also X, Y et Z v.   the United Kingdom , 21830/93, 22 April 1997, Legal Summary ; Odièvre v.   France [GC], 42326/98, 13 February 2003, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .