| Applicant name | BARET and CABALLERO |
| Applicant type | Natural person (deseaced) |
| Number of applicants | 2 |
| Country | France |
| Application no. | 22296/20 37138/20 |
| Date | 14/09/2023 |
| Judges | Georges Ravarani, président, Lado Chanturia, Carlo Ranzoni, María Elósegui, Mattias Guyomar, Kateřina Šimáčková, Mykola Gnatovskyy |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | |
| Reason | |
| Type of privacy | Relational privacy; |
| Keywords | Future family life; procreation through sperm of deseaced man |
| Facts of the case | The two applications concern the refusal to export the gametes of the deceased husband of the first applicant and the embryos of the couple formed by the second applicant and her deceased husband to Spain, a country which authorizes post-mortem procreation. |
| Analysis | Interestingly, the Court points out that the choice to become a parent or not is part of someone’s private life; the question whether establishing a future family falls under the right to family life does not need to be established according to the ECtHR. The Court considers that the interference was prescribed for by law and served the legitimate interest of “protecting the rights and freedoms of others” and “protecting morals”. As to the necessity requirement, the Court finds that there is a wide margin of appreciation for Member States. The Court refers to its previous Pejřilová judgement, in which it found that given the lack of a European consensus on post-mortem procreation, an absolute prohibition on post-mortem procreation, without a case-by-case assessment of the facts and weighing of interests, was allowed. Different from that case, however, France not only prohibits post-mortem procreation on its own territory, but also the transport of material to have post-mortem procreation conducted abroad. In addition, similar to that case, one , one of the two applications that are joined in this judgement concerns the use of sperm from the deceased partner, the other application, however, concerns already formed embryo’s on the basis of the biological material of both partners. The Court recalls, however, that it does not recognize the status of the embryo as an autonomous subject of law. |
| Other Article violation? | – |
| Damage awarded | – |
| Documents | Judgment |