Faced this summer with a priority issue of constitutionality, the French Council of State has just made a decision that “voids one of the arguments most often put forward by supporters of ‘medically assisted reproduction for all women'”: According to the Council of State, “in terms of procreation, male/female couples are in an entirely different situation from that of same sex couples”.
Two women, one of whom was diagnosed as infertile, requested access to medically assisted reproduction in France. Their request, which is considered illegal, was turned down by Toulouse University Hospital Centre (CHU). Dismissed last February by the ECHR[1] which found that not all appeals had been heard in France, they turned to the Administrative Court of Toulouse. The latter ruled for a Priority preliminary ruling on the issue of constitutionality (QPC) to be sent to the Council of State posing the question of conformity of Article L. 2141-2[2], which reserves access to medically assisted reproduction to living male/female couples of child-bearing age and with medically diagnosed infertility.
In its decision of 28 September, the Council of State rejected, “on the grounds of lack of seriousness”, the issue raised by both these women “who considered themselves victims of inequality”. The Council of State points out that, “The principle of equality does not preclude the legislator from ruling differently in different situations or from derogating from equality for reasons of public interest provided that, in both cases, the difference in the resulting treatment is directly related to the purpose of the law via which it is enacted”.
Whereas, in July, this same Council of State had not taken sides regarding medically assisted reproduction[3], this judgment “indirectly reverts to the subject”. For Caroline Mecary, the lawyer representing the two women, “it’s an unbelievable decision”. She believes that the Council of State should have referred the matter to the Constitutional Council. Ludovine de La Rochère, President of La Manif Pour Tous (The Protest for Everyone), welcomes this decision: “The issue of making medically assisted reproduction available to lesbian couples and single women is not a solution to a discrimination problem or a measure of equality”. The association Juristes pour l’Enfance (French Legal Association for the Rights of the Child) also applauds the decision: “It is a fitting reminder of what happens when the principle of equality is wrongly applied”. Furthermore, “medically assisted reproduction for all women would introduce a real legal divide, differentiating between children legally allowed to have a father and those prohibited from discovering their paternal origins”.
[1] “Medically assisted reproduction for all”: case rejected by the ECHR and returned to the Administrative Court of Toulouse
[2] “Medically assisted reproduction for all women” Priority Issue of Constitutionality presented to the Council of State
[3] “Medically assisted reproduction for all” – Council of State between the devil and the deep blue sea
AFP (2/10/2018); Juristes pour l’enfance (2/10/2018); Jean-Yves Nau (3/10/2018)