Can a deceased spouse's gametes be used to create a child? And what is the status of the latter? Posthumous medically assisted procreation (MAP) returns to court on Tuesday. The Paris Court of Appeal is scheduled to rule on two separate cases, addressing the issue of inheritance rights and paternal filiation of children born through posthumous MAP.
What are we talking about?
This involves a woman carrying out, after the death of her partner, medically assisted procreation (MAP) with the insemination of the latter's sperm or via the implantation of an embryo conceived with the couple's gametes, then frozen.
What does the law say?
The 2021 Bioethics Act confirmed that the death of one member of a couple constitutes an "obstacle" to insemination or embryo transfer. The Public Health Code provides three options for the surviving member: consent to the embryos being transferred to another couple, used for research, or destroyed.
And abroad?
Belgium, Spain, the Netherlands, and the United Kingdom allow post-mortem medically assisted procreation, sometimes with conditions, including the man's formal consent. Conversely, Germany, Denmark, Italy, and Switzerland prohibit it, as does France.
Is there a consensus on the subject?
It was the subject of heated debate among parliamentarians during the last revision of the bioethics law. The then Minister of Health, Agnès Buzyn, had notably estimated that posthumous medically assisted procreation risked "to lead women into endless mourning"Her counterpart at Research, Frédérique Vidal, mentioned the risk of "pressures" that the relatives of the deceased could exercise over the widow.
Defenders of the measure point out the paradox of authorizing medically assisted procreation for single women and at the same time prohibiting a widow from pursuing a "parental project" already engaged.
The Bamp collective, an association of patients of medically assisted procreation, denounces in particular "hypocrisy" and the "cynicism" of the law, which allows women to “donate their embryos and request sperm donation from a stranger”. Judging this fight " legitimate " And "worth wearing", the socialist deputy Arthur Delaporte indicated that he had submitted a bill to try to change the legislation.
What does the Ethics Council say about it?
The National Consultative Ethics Council (CCNE) has spoken out against the use of cryopreserved sperm, highlighting the fact that the “consent of the future parent at the very moment of procreation” East “difficult to verify”.
On the other hand, he said he was in favour of embryo transfer after the death of the man, provided that he had expressed his consent to this possibility during his lifetime and that the woman concerned benefits from a “medical and psychological support”.
Regarding inheritance law, it should actually be "adapted" For “take into account the particular situation of a child whose date of birth falls outside the presumed period of conception”, but these "legal difficulties" are not "insurmountable", according to the CCNE.
What has the French justice system said in the past?
It has always rejected requests for posthumous procreation on its soil, while authorizing on at least two occasions, due to "special situations", the transfer of gametes abroad. A line validated in 2023 by the European Court of Human Rights (ECHR).
Seized by two women who wanted to export gametes and embryos abroad, the ECHR ruled that the French State had not "exceeded the margin of appreciation available to him" and held that the ban on posthumous insemination was a matter of "political choice".
However, she questioned the relevance of this ban in light of the opening of medically assisted procreation (MAP) to single women in 2021. A new application has been filed with the ECHR. "There is a very clear opening in the 2023 ruling", believes lawyer Raphaëlle Poupet, who initiated the request. "It is not a question of questioning the relevance of French law but its coherence."
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