Saturday, 18 February 2017

Charron and Merle-Montet v France - discrimination against same-sex couple in respect of "medically assisted procreation"

The European Court of Human Rights has communicated the complaint in Charron and Merle-Montet v France, which concerns a same-sex couple's inability to access "medically assisted procreation" that is available to opposite-sex couples.

The facts

Ms Charron and Ms Merle-Montet have been married since May 2014. Ms Charron has a "fertility problem". The couple wish to have a child and decided to turn to medically assisted procreation, with a view to achieving the insemination of Ms Merle-Montet. They asked the medical center for procreation of the University Hospital Center in Toulouse to provide the treatment. A doctor at the hospital replied that they could not receive treatment because the law currently in force in France regulating medically assisted procreation does not authorize the treatment of same-sex couples.

French law

The relevant law in France (Article L. 2141-2 of the Code de la santé publique) states that the purpose of medical assistance for procreation is to remedy the infertility of a couple and that the pathological character of infertility must have been medically diagnosed. 

The law states that medical assistance for procreation is intended for a "man and woman" who, forming a couple ("L’homme et la femme formant le couple..."), must be alive and be of childbearing age.

Complaint to the Court

Ms Charron and Ms Merle-Montet complain under Article 8 alone and in conjunction with Article 14 of the Convention that the rejection of their request for support for medically assisted procreation violates their right to respect for their private and family life and amounts to discrimination on the grounds of sexual orientation. 

In respect of their claim of discrimination, Ms Charron and Ms Merle-Montet compare their situation to that of an opposite-sex couple in which man is infertile.

Questions to the parties

The Court has asked the parties the following questions:

1. Did the applicants exhaust domestic remedies in respect of their complaints? 

2. If so,

(A) What are the conditions under French law regarding access to medically assisted procreation? Could same-sex couples gain access to assistance in private clinics?

(B) Does the refusal to assist Ms Charron and Ms Merle-Montet infringe the right to respect for private and family life of the couple or, indeed, the one who wishes to be inseminated? If the refusal interferes with this aspect of Article 8, can it be justified? 

(C) Does the refusal to assist Ms Charron and Ms Merle-Montet amount to discrimination based on their sexual orientation?

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