The last few decades have been witness to major advances in the field of research and medical sciences, with these upheavals placing the issue of post-mortem procreation at the forefront.
News items in the media regularly illustrate these post-mortem kinship situations. To name a few, in 2015 in Australia, doctors were able to take the sperm of a man who had died for 48 hours prior to inseminate his widow, who then gave birth to a healthy baby. Last year, this time in the United States, a 60-year-old woman was able to recover the frozen oocytes from her daughter who died from cancer in 2011, in order to become the surrogate mother of her deceased daughter; the Supreme Court ruled that that she had no obligation to express her consent in writing before her death. In the same thread, the family of a young woman in critical condition, close to death, had asked for the collection of oocytes so that she could become a mother, posthumously. Furthermore, there have been several reports in recent years involving cases of posthumous maternity in which the vital cardiac and respiratory functions of women in a brain-dead state are maintained until cesarean delivery. It is indeed possible to keep a fetus alive in utero from ten to twenty weeks to allow its development.
These various situations of posthumous kinship, considered both from the point of view of maternity and paternity, inevitably lead to strong reactions, and this debate on the ethical aspects of post-mortem medically assisted procreation is becoming more and more controversial across the world, including in France.
In French law, the rule is that any post-mortem procreation is prohibited on the basis of the provisions of the Public Health Code (Article L. 2141-2), for two reasons. On the one hand, because such a use of medically assisted procreation clearly does not concern the infertility of the couple, a condition required by the text. On the other hand, the situation is complicated by the fact that this text is aimed specifically at a "living" man and woman.
One of the main arguments raised to justify this prohibition is at the ethical level: it is the best interests of the child. Post-mortem procreation is indeed accused of creating orphans, giving birth to "children of death", or "children born of mourning", which would be contrary to the interest of the child because the potential negative psychological effects. This argument can, however, be qualified in the sense that, on the one hand, the interest of the child is a very subjective term, and conceptions may vary as to what is good or bad for the child. To further add to this point, single-parent families in which the mother raises her child alone are not rare in our contemporary society.
Despite this prohibition in principle, the debate on the legitimacy of a posthumous relationship has been revived in France following a decision of the Council of State. Indeed, on May 31st, 2016, the judges allowed a Spanish widow to export the gametes of her husband who died of cancer to a Spanish health facility that can practice post-mortem medically assisted procreation, this medical technique being authorized in Spain.
While some have seen in this decision a first crack in the refusal of French law to practice procreation post mortem, it is nevertheless necessary to relativize the scope of it. First of all, it is simply an interim measure and the Conseil d'État did not consider that the texts of the Public Health Code were contrary to the European Convention on Human Rights. He relied solely on his decision, as judge of summary proceedings, on the potentially disproportionate interference with the rights guaranteed by the Convention. Moreover, it is certain that the deceased had expressly consented to postmortem insemination, specifically in Spain as the couple planned to have a child and the man, who risked becoming sterile as a result of medical treatment, wished to preserve his gametes. Finally, the Council of State notes the absence of any fraudulent intent and, given the urgency, the export could be authorized.
It should also be noted that shortly thereafter, on October 12th 2016, the Rennes Administrative Court recognized for the first time the right of a French applicant to export the gametes of her deceased husband abroad. That judgment therefore seems to confirm the position of the Council of State, and even to go further, the applicant was French in this case.
If post mortem procreation is therefore forbidden in France as a matter of principle, the issue of the "reminder baby" creates controversy on a moral plane. Therefore, should we consider, like the Nobel Prize in physics Dennis Gabor, that "everything that is technically feasible must be achieved, that this achievement is considered morally good or reprehensible"? The question remains unanswered. Nevertheless, if post-mortem procreation is to be authorized in France, the applicable legal regime will undoubtedly have certain strict requirements, in particular to be based on the express will of the deceased, which must be established in writing and carried out within a specified period of time of the death of the partner, in order to avoid an infringement of rights or morals. In any case, for the moment the French judge is content to "export the problem" to countries where this practice is allowed.