The Paris Administrative Court has just transmitted a priority question of constitutionality (QPC) [1] to the Council of State concerning access to the origins of persons born from medically assisted procreation with a third-party donor. This decision follows an appeal filed by a woman, born in 2001 following a gamete donation, wishing to access the identifying and non-identifying data of her third-party donor. To this end, Ms. B. brought the case before the Commission for Access to Third-Party Donor Data for Persons Born from Medically Assisted Procreation (CAPADD), set up after the latest bioethics law, which now requires donor candidates to waive anonymity. However, the CAPADD refused her request [2] : the donor having died, he can no longer give his consent to the transmission of data concerning him.
This question had already been brought before the ECHR (see ECHR: refusal of access to origins does not violate the Convention).
Mrs. B invokes “ the right to respect for private life, the right to lead a normal family life, the principle of equality before the law, and the requirement to protect the best interests of the child “. On June 14, 2024, the court ruled that “ the disputed provisions cannot be regarded as having already been declared to be in conformity with the Constitution “, and ” the question is not devoid of serious character “This justified the transmission of the QPC to the Council of State. It has 3 months to rule on this QPC, and decide whether or not to transmit it to the Constitutional Council.
Allow the violation of medical confidentiality?
Since the deceased donor never filled in the register of gamete and embryo donations held by the Biomedicine Agency, what information could the CAPADD transmit in the event of the applicant’s victory? Would it be a question of accessing the medical file after his death? Would this data cease to be subject to secrecy upon the death of the person, without consideration for the consequences that their disclosure could generate, for example for the relatives of the deceased?
At the beginning of 2024, Géraldine Bannier, a Democratic MP, registered a bill with the Presidency of the National Assembly: aimed at enabling all persons born from gamete donation to access information on their origins ». « Pending the future bioethics law, this bill intends to advance the rights of people born through gamete donation by allowing them to be informed of the identity of their parent at the time of their death and to lift the anonymity of the latter », et « by allowing them to carry out genealogical genetic tests in order to gather information – even if sometimes questionable – on their genetic heritage ».
Will the pain of not knowing one’s origins have the last word? (see PMA: problems of identity and trust in children born after gamete donation)
[1] During a trial before a judicial or administrative court, it is possible to challenge the law that is applied if it is considered to be contrary to the rights and freedoms guaranteed by the Constitution. This is done by asking a priority question of constitutionality (QPC) before the case is judged. If all the conditions are met, it is the Constitutional Council that will examine the contested law and decide whether it should no longer be applied. (Source: Public service)
[2] decision of June 5, 2023
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