Judgement 21424/16 45728/17

Applicant name GAUVIN-FOURNIS and SILLIA
Applicant type Natural person
Number of applicants2
Country France
Application no. 21424/16 45728/17
Date 07/09/2023
Judges Georges Ravarani, président,
 Carlo Ranzoni,
 Mārtiņš Mits,
 Stéphanie Mourou-Vikström,
 María Elósegui,
 Mykola Gnatovskyy, juges,
 Catherine Brouard-Gallet, juge ad hoc,
Institution Court
Type Judgment
Outcome Art. 8 No violation
Reason Necessary in a democratic society (health and morals; rights and freedoms)
Type of privacy Privacy life (identity)
Keywords Identity parent; sperm donor; quality of legislative process
Facts of the case Children who are conceived through sperm donation what to know who their father is, but are dissalowed in the French legal system.
Analysis The Court makes clear right from the start that it will treat this complaint under the protection of private life, rather than family life, without making precisely clear why that is. The Court continues to conclude that, unlike the government’s suggestion that the case concerns a negative obligation, it revolves around a positive obligation. Hence, it will assess whether, by opposing the principle of donor anonymity to the applicant and the applicant, France failed in its positive obligation to guarantee effective respect for their private lives.

As to the margin of appreciation, the ECtHR notes that there is no consensus among the Member States whether it was preferable, from the point of view of the child thus conceived, to protect the anonymity of the sperm donor or to give the child the right to know the identity of the donor this. The modalities of access to the latter also differ significantly within Member States. In addition, the case raises delicate ethical and moral questions, and that public interests are at stake. These elements argue in favor of a wide margin of appreciation, but the Court also notes that the right to obtain information necessary to discover the truth concerning an important aspect of one’s personal identity is a fundamental aspect of the right to respect for private life. In addition, there is a trend among Member States towards lifting the anonymity of gamete donors and the Court points to the rise of recreational/consumer genetic tests.

As to the substance of the complaint, the Court primarily assesses the quality of the legislative process and the parliamentary debates. It finds that these were exceptionally good and detailed, that all relevant interests were duly taken into account and that the regulatory system that was put in place was balanced and granular. For example, the system allowed for disclosure of information for medical and therapeutic reasons and in case two donor children want to verify whether they have the same parent when they are romantically involved. Not only were there sensitive medical and societal issues at play, sensitive personal data of the donor was also at stake; disclosing those might also have an effect on the effectiveness of the donor system as such.

What is additionally interesting in this case is that each country is allowed to have a national judge sit on a case against it. These judges are sometimes said to be biased in favor of their government, but both because of the advantages of their intimate knowledge with the language, societal reality and legal system of their country and because there is a strict vetting procedure, this practice is generally looked favorably upon. When they cannot sit on a case, for example because of a conflict of interest, they will excuse themselves and the government has the right to have an ad hoc judge sit on the case. There have been long standing worries about the quality and impartiality of ad hoc judges, which undergo a test of scrutiny that is lower than for sitting judges. In this case, the decision to find no violation of the Convention was established with the smallest majority possible, with the ad hoc judge having the swing vote.

There is one concurring opinion and three dissenting opinions. The dissenting judges make a reference to the majoirty’s emphasis on the quality of the legislative process (‘En dépit des débats législatifs nourris et, à n’en pas douter, passionnants qui se sont déroulés en 2011, les tergiversations et désaccords de principe ont eu pour conséquence de ralentir l’élaboration d’une loi levant enfin l’anonymat, et à priver les requérants de leur droit à connaître leur ascendant’) and come to conclude, in short, that the interests of the child should have prevailed.
Other Article violation? No violation 8+14 ECHR
Damage awarded
Documents Judgment