Ethel Despy
LLM in European and International Law: Public International Law Track
Access to medically assisted procreation to female same-sex
couples under the ECHR: The case Charron and Merle-Montet v.
France
Supervisor: Rosanne van Alebeek Academic year 2017-2018
I would like to thank Ms Rosanne van Alebeek for her advices and her constant support.
I am also grateful to Ms Hélène Koole and Ms Elke Engels for checking my final work.
Table des matières
Access to medically assisted procreation to female same-sex couples under the ECHR: The
case Charron and Merle-Montet v. France 1
Introduction 4
1. The margin of appreciation of States under the ECHR 7
1. A. The margin of appreciation of States when implementing article 14 in conjunction with article
8 7
1. B. The margin of appreciation of States when implementing article 8 10
2. The obligations of States under article 14 ECHR 15
2. A. Applicability 15
2. B. Compliance 16
2. B. 1. The difference in treatment of people in relevantly similar situations or the failure to treat differently people in significantly different situations 17 2. B. 2. Differences in treatment consistent with article 14 ECHR 20 3. The obligations of States under article 8 ECHR in relation to MAP 24 3. A. The obligation not to interfere with the right to access MAP of the applicants 24
3. B. The general obligation to access MAP under the ECHR 27
3. C. A specific obligation for France to grant access to MAP 30
Conclusion 34
Introduction
On 7 May 2015, Ms Charron and Ms Merle-Montet, a female same-sex couple, seized the European Court on Human Rights claiming that the French law on medically assisted procreation (MAP) was inconsistent with the European Convention on Human Rights (ECHR)1 because it denies them access to MAP. The French law on MAP2 has been integrated in the French Public Health Code and sets in its article L2141-2“The medical
assistance for procreation aims to remedy the infertility of a couple or to avoid the transmission of a particularly severe disease to the child or to a member of the couple”3. It
adds, “The man and the woman of the couple must be alive, of reproductive age and consent
in advance to the embryo transfer or the insemination”4. This provision establishes a
difference in treatment between female same-sex couples and different-sex couples and, according to the applicants, is inconsistent with the ECHR. The applicants based their claims on two separate grounds: on one hand, they claimed that France acted inconsistently with article 14 ECHR in conjunction with article 8 that prohibits discrimination on any grounds; on the other hand, that France did not comply with its obligations under article 8 ECHR that sets out the right to private and family life. On 16 January 2018, the European Court of Human Rights (the Court) declared the complaint of the applicants inadmissible due to their failure to exhaust local remedies5.
Against this backdrop, this thesis sets out to examine whether the claim against France would likely be successful, should it proceed to the merits phase in a near future. Two separate lines of inquiry will be launched, one related to the obligations of States flowing from article 14 in conjunction with article 8 ECHR, and one related to the obligations of States under article 8 ECHR. For each, the requirements for applicability and compliance with these Convention articles will be examined, also taking into consideration the concept of margin of appreciation.
1 COUNCIL OF EUROPE, European Convention for the Protection of Human Rights and Fundamental Freedoms,
as amended by Protocols Nos. 11 and 14, 4 November 1950, available at http://www.refworld.org/docid/3ae6b3b04.html.
2 French Law on MAP of the 7th July 2011 amending the French Public Health Code of 1953, available at
https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006072665.
3 Article L2141-2 of the French Public Health Code, 1953. 4 Ibidem.
The methodology adopted in this thesis is the ‘jurisprudence and literature’ method6. This method commands to rely on the jurisprudence of the Court, its developments and the commentaries it has been subject to when it deals with cases involving an alleged violation of article 14 in conjunction with article 8 and cases involving an alleged violation of article 8. The analysis of the approach adopted by the Court in such cases reveals that the claim on the ground of article 14 in conjunction with article 8 must be addressed as following: Firstly, the Court must ensure that the complaint of discrimination falls within the scope of a Convention right7. Secondly, it must decide whether the alleged difference in treatment consists in discrimination within the meaning of article 14 and assess the potential justifications of it8. The claim on the ground of article 8 ECHR must be addressed following a two-stage test as well9. The first one deals with the applicability of this article and aims to determine whether the complaint gives rise to an issue under it10. The second step commands to assess whether Member States comply with their obligations under this article. The chosen method suggests that the claim on the ground of article 14 in conjunction with article 8 must be examined prior to the claimed violation of article 8, insofar as this is how the Court proceeds when it deals with cases where the essence of the allegation of violation of the substantive right is an act of discrimination11. The reference to the case-law of the Court suggested by this method will allow a better interpretation and application of key concepts such as ‘margin of appreciation’, ‘legitimate aim’, ‘proportionality’, ‘necessary in a democratic society’, ‘right comparator group’, etc., while the reference to literature that has been developed about the jurisprudence of the Court in the areas of the law of anti-discrimination, the law of private, family life and the law of MAP will provide a better understanding of the commentaries, potential controversies and divergences of interpretation this jurisprudence has been subject to.
6 S.O.CHAIB, ‘Research methodology for case law analysis: an appeal for openness’, 10 September 2015,
available at https://strasbourgobservers.com/2015/09/10/research-methodology-for-case-law-analysis-an-appeal-for-openness/.
7 JACOBS,WHITE AND OVEY,The European Convention on Human Rights, Oxford University Press, Oxford,
2017, pp. 640-641.
8 Ibidem.
9 U. KILKELLY, ‘The right to respect for private and family life - a guide to the implementation of article 8 of the
European Convention on Human Rights’, Human Rights handbooks, no. 1, Council of Europe, Strasbourg, 2001, p. 7.
10 I.ROAGNA,‘Protecting the right to respect for private and family life under the European Convention on
Human Rights’, Human Rights handbooks, Council of Europe, Strasbourg, 2012, p. 11, available at
http://www.echr.coe.int/LibraryDocs/Roagna2012_EN.pdf.
11 JACOBS,WHITE AND OVEY,op. cit. (voy. note 7), p. 637; Salgueiro da Silva Mouta v. Portugal, Judgment,
This work is structured as followed: Chapter 1 deals with the margin of appreciation that States enjoy when implementing, on one hand, their obligations under article 14 in conjunction with article 8 and, on the other hand, their obligations under article 8 ECHR. Subsequently, in chapter 2, the claim of the applicants as grounded on article 14 in conjunction with article 8 will be assessed. This chapter will be divided in two sections: the first one will be dedicated to the assessment of the applicability of this article, the second to the compliance of France with it. Chapter 3 deals with the complaints of the applicants as grounded on article 8. After the analysis of the applicability of this article, this chapter will be divided in three sections, each one corresponding to one of the approaches that the Court could adopt in assessing the compliance of France with its obligations under article 8. For each chapter/section, the legal framework is firstly set out and then applied to the situation of the applicants.
1. The margin of appreciation of States under the ECHR
The ECHR is a living instrument setting a common denominator of rights intended to ‘be
interpreted in the light of present-day conditions’12. The need to implement these rights in accordance with the diverse legal and cultural traditions embraced by each Member State commands to recognize them a margin of appreciation in implementing their obligations under the Convention13. The scope of this margin depends on several factors and the practical application of these factors depends on the latitude allowed in the implementation of the Convention article at stake14. In this chapter, we will identify the factors that make the scope of the margin of appreciation of States vary: firstly, when they implement their obligation under article 14 in conjunction with article 8 (1. A); secondly, when they implement their obligations under article 8 (1. B).
1. A. The margin of appreciation of States when implementing article 14 in conjunction with article 8
Article 14 ECHR prohibits ‘discrimination on any grounds’. It does not prohibit any difference in treatment but only differences in treatment of people in relevantly similar situations and the failure to treat differently people whose situations are significantly different with no reasonable and objective justification15. States enjoy a margin of appreciation in assessing whether situations are relevantly similar or significantly different and whether circumstances can justify differences in treatment within the meaning of article 1416. The scope of this margin depends on several factors.
The first of these factors is the existence of a common or shared legal practice among Member States. When such consensus does not exist, a wide margin is recognised to the State in ruling on the matters concerned17. In the area of the law of non-discrimination, it appears that little practices are shared among States, partially because of the diversity and the rapid evolution of these, and the reference to this factor leads most of the time to the recognition of
12 Tyrer v. the United Kingdom, Judgment, application no. 5856/72, 15 March 1978, § 31.
13 COUNCIL OF EUROPE, ‘The margin of appreciation’, available at
https://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/echr/paper2_en.asp#P70_1637.
14 S.GREER, ‘The Margin of Appreciation: Interpretation and Discretion under the European Convention on
Human Rights’, Human Rights files, no. 17, Council of Europe, 2000, p. 12.
15 Thlimmenos v. Greece, Judgment, application no. 34369/97, 6 April 2000, § 44. 16 X and others v. Austria, Judgment, application no. 19010/07, 19 February 2013, § 98. 17 E.B. v. France, Judgment, application no. 43546/02, 22 January 2008, § 70.
a wide margin to States18. Moreover, some argued that the late approach of the Court in this area has revealed that a consensus can only narrow the margin of States when the latter has already existed for some time19. According to them, in the case S. H. and others v. Austria, the refusal of the Court to consider that the emerging trend existing among States in the area of assisted reproduction techniques narrows the margin of States proved its unwillingness to restrict the latitude that States enjoy so far in this area20. They suggest thus a weaker reliance upon this factor in cases where no consensus exists and serves to wide the margin of States21.
Secondly, since article 14 has no independent existence and must always be pleaded in respect of other rights and freedoms in the Convention22, the scope of the margin of appreciation always depends on the ‘kinds of discretion ... associated with these other provisions’23. For instance, when associated with the right to private and family life, a wide margin is suggested in the implementation of obligations under article 14 due to the latitude allowed to States in choosing the means whereby they will comply with their obligations under article 824.
Thirdly, when national authorities have to strike a balance between competing public and private interests, they must enjoy a broad margin of appreciation25. This is explained by the fact that these are in a better position than the European judge to weigh these interests26.
Fourthly, the width of the margin depends on the specific context in which this margin is used, as well as the particular circumstances of the case, its subject matter and its background27. For instance, when sexual orientation is in issue, the Court normally requires
18 J.NOZAWA,‘Drawing the line: same-sex adoption and the jurisprudence of the ECtHR on the application of
the ‘European consensus’ standard under article 14’, Merkourios - Utrecht Journal of International and
European Law, 2013, p. 66.
19 N.HERVIEU,‘Procréation médicalement assistée: sous pression, la Grande Chambre préfère la pusillanimité à
l’audace (CEDH, G. C. 3 novembre 2011, S. H. et autres c. Autriche), 7 November 2011, available at
http://combatsdroitshomme.blog.lemonde.fr/2011/11/07/procreation-medicalement-assistee-sous-pression-la-grande-chambre-prefere-la-pusillanimite-a-l’audace-cedh-g-c-3-novembre-2011-s-h-et-autres-c-autriche/.
20 Ibidem.
21 J.NOZAWA,op. cit. (voy. note 18), p. 67.
22 Thlimmenos v. Greece, op. cit. (voy. note 15), § 40. 23 S.GREER, op. cit. (voy. note 14), p. 12.
24 Y.ARAI, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of
the ECHR, Intersentia, 2002, p. 69.
25 E.B. v. France, op. cit. (voy. note 17), § 70. 26 Y.ARAI, op. cit. (voy. note 24), p. 69.
27 J.SCHOKKENBROEK,‘The prohibition of discrimination in Article 14 of the Convention and the margin of
‘particularly convincing and weighty reasons to justify a difference in treatment’28. However, the Court has once departed from this classical approach and raised doubt on the accuracy of this, until then, well-established assertion. In the case Schalk and Kopf v. Austria, the Court had to decide on the complaint of a male homosexual couple according to which the failure of Austria to provide legal recognition to same-sex couples constituted among others a violation of article 14 taken in conjunction with article 829. In assessing this complaint, while it reaffirmed that differences based on sexual orientation theoretically require particularly convincing reasons by way of justification30, it stated that the emerging trend towards legal recognition of same-sex couples that existed at this time among Member States commanded not to narrow the margin of States, solely the existence of a consensus in that sense being able to achieve such result31. The absence of common legal practice took precedence over the fact sexual orientation was at issue and resulted in a wide margin granted to Member States32. The standard required by the Court, that an emerging trend was not able to reach, was seen by some as reflecting its unwillingness to be proactive in a field where most issues still fall within the legal competence of individual States33. Consequently, doubt appeared on whether the theoretical assertion, according to which a rather narrow margin of appreciation must be granted to States once sexual orientation is at stake, could be reproduced in situations where there exists little European consensus34. One must however notice the existence of cases where the Court keeps adopting a protective approach of LGTB rights by requiring particularly convincing reasons for differentiation, without even referring to the eventual consensus that might exist between States35.
Fifthly, States usually benefit from a wide margin of appreciation in adopting and implementing general measures of economic or social strategy36. In the case Stec and others
v. the United Kingdom, where it had to decide on an allegation of gender discrimination, the
Court held that ‘because of their direct knowledge of their society and its needs, the national
28 X and others v. Austria, op. cit. (voy. note 16), § 99.
29 Schalk and Kopf v. Austria, Judgment, application no. 30141/04, 24 June 2010, §§ 11-12. 30 Schalk and Kopf v. Austria, op. cit. (voy. note 29), § 97.
31 Schalk and Kopf v. Austria, op. cit. (voy. note 29), § 105.
32 C.DANISI,‘How far can the European Court of Human Rights go in the fight against discrimination? Defining
new standards in its non discrimination jurisprudence’, International Journal of Constitutional Law, 2011, p. 795.
33 C.DANISI,op. cit. (voy. note 32), p. 806.
34 P.JOHNSON,‘Homosexuality, freedom of assembly and the margin of appreciation doctrine of the European
Court of Human Rights: Alekseyev v. Russia’, Human Rights Law review, 2011, pp. 589-590.
35 Vallianatos and others v. Greece, Judgment, applications nos 29381/09 and 32684/09, 7 November 2013, §
85.
authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”’37.
Finally, the Court held in the case A, B and C v. Ireland that the fact that the Irish law to the right to life of the unborn and the restrictions on lawful abortion were based on profound moral and ethical issues allowed for a significant margin in the implementation of obligations under article 1438. Some however denounced the excessive reliance of the Court upon this factor to conclude to the non-violation of its obligation by Ireland and to attempt to engage itself from the abortion question39.
1. B. The margin of appreciation of States when implementing article 8
Article 8 ECHR sets out the right to private and family life. Its second paragraph provides the conditions according to which national authorities can interfere with this right. States enjoy a margin of appreciation in assessing whether these conditions are met.
A major factor in determining the scope of the margin of States under article 8 is the existence of a legal consensus among them40. It is even of greater importance in fields that give rise to high-challenging issues. For instance, in the case S. H. and others v. Austria, the Court justified its extended reliance upon this factor by its refusal to substitute its own appreciation to that of national authorities to rule on artificial procreation’s issues41. Such reliance is sometimes denounced as a mean used by the Court to avoid positioning on such issues42. Here also some regret the uncertainty about the standard required by the Court to admit that such consensus exists43. According to them, it seems that only a well-established and stable consensus can narrow the margin of States44.
37 Stec and others v. the United Kingdom, Judgment, applications nos 65731/01 and 65900/01, 12 April 2006, §
52.
38 A, B and C v. Ireland, Judgment, application no. 25579/05, 16 December 2010, § 185.
39 C.RYAN,‘The margin of appreciation in A, B, and C v. Ireland: a disproportionate response to the violation of
women’s reproductive freedom’, UCL Journal of Law and jurisprudence, 2014, p. 238.
40 COUNCIL OF EUROPE, op. cit. (voy. note 13).
41 S. H. and others v. Austria, Judgment, application no. 57813/00, 3 November 2011, § 92.
42 E. POLGARI, ‘European consensus: a conservative and a dynamic force in European Human Rights
jurisprudence’, ICL Journal, 2018, Vol. 12, pp. 59-84.
43 D.KETE,‘Case of S. H. and Others v. Austria: Practical Concern over individual rights’, Boston College
International and comparative Law review, 18 February 2014, p. 56.
Secondly, circumstances such as the quality of the decision-making process and ‘the
coherence of the administrative and the legal practices within the domestic system’ make the
scope of the margin vary45. In the case Oliari and others v. Italy, the Court stated that the fact that the Italian law was such as it provided a right in very limited circumstances, whose determination was exclusively left to domestic courts, in the context of a country that is not bound by system of judicial precedent, must narrow the margin of appreciation of Italy46.
Thirdly, the circumstances, the subject matter and the background of the case make the width of the margin under article 8 vary47. For instance, the fact that sexual orientation is at issue usually narrows the scope of the margin of appreciation48. However, in the case Oliari and
others v. Italy, when dealing with the complaint of the applicants as grounded on article 8, the
Court reaffirmed that, despite the fact that sexual orientation is at issue, a wide margin of appreciation must always be recognised to States in the absence of consensus among them49. Its approach suggested that the absence of common or shared legal practice among Member States is a more determining factor than that according to which the fact that sexual orientation is at issue allows for little latitude, in the assessment of the scope of the margin of States not only under article 14 in conjunction with article 8, but also under article 8 ECHR50. This created further criticisms, including denunciations of an approach of the Court not sufficiently protective of LGTB rights51.
Fourthly, the link of the subject matter of a case with sensitive moral and ethical issues widens the scope of the margin that States enjoy under article 852. Since these differ from one country to one other, domestic authorities are in a better position than the European Court to determine the exact content of these issues and the means needed to ensure their protection53. In the case S. H. and others v. Austria, the Court set, as a general remark, that the fact that
45 Oliari and others v. Italy, Judgment, applications nos. 18766/11 and 36030/11, 21 July 2015, §§ 171-172. 46 Ibidem.
47 I.ROAGNA,op. cit. (voy. note 10), pp. 45-46. 48 E.B. v. France, op. cit. (voy. note 17), § 91.
49 Oliari and others v. Italy, op. cit. (voy. note 45), § 177.
50 M. SANDERSON,‘A new approach to sex-based classifications in the context of procreative rights: S. H. &
Others v. Austria in context’, European Journal of health Law, 2013, p. 36.
51 G.ZAGO, ‘A victory for Italian same-sex couples, a victory for European homosexuals? A commentary on
Oliary v. Italy’, 11 March 2015, available at http://www.articolo29.it/2015/victoryforitaliansamesexcouples-victoryforeuropeanhomosexualscommentaryonoliarivitaly/
52 Oliari and others v. Italy, op. cit. (voy. note 45), § 177.
53 S.BARBOU DES PLACES,N.DEFFAINS,‘Morale et marge nationale d’appréciation dans la jurisprudence des
artificial procreation gives rise to moral concerns allows for a broad margin to Austrian authorities, especially in the absence of consensus among States in this field54. This additional reference to the existence of a consensus among States to justify the width of the margin afforded supports the view that this factor is preferred over any others55. However, when further dealing with the complaint of the third and fourth applicants, the Court pointed out that the use of wide margin recognized could not amount to a ban on special procreation techniques56. This last remark seems to reveal the Court’s awareness of the large latitude previously accorded to Austria and the need to insure the applicants that this latitude is not without limits57.
Fifthly, a wide margin of appreciation must be recognized to domestic authorities when they undertake a balancing exercise between competing individual interests and those of the community as a whole58. As pointed out in the case S. H. and others v. Austria, this recognition is however subordinated to the set up a legal framework ‘shaped in a coherent
manner which allows the different legitimate interests involved to be adequately taken into account’59. Moreover, when this balancing exercise is undertaken in keeping with the criteria as developed by the Court in its case law, only strong reasons can permit domestic courts to depart from them60.
Increasingly the Court recognizes a wide margin to States in the implementation of their positive obligations under article 8 ECHR61. Accordingly, when the framework of the applicants’ complaint suggests that the obligations flowing from article 8 can be seen as either positive or negative, the principle of subsidiarity commands to recognize a wide margin of appreciation to States in the choice of means whereby they comply with their obligations
54 S. H. and others v. Austria, op. cit. (voy. note 41), § 97. 55 M. SANDERSON,op. cit. (voy. note 50), p. 30.
56 S. H. and others v. Austria, op. cit. (voy. note 41), § 100.
57 E.PURDUE,‘States have margin of appreciation to regulate access to reproductive health care’, Human Rights
Law centre, 2011, available at https://www.hrlc.org.au/human-rights-case-summaries/states-have-margin-of-appreciation-to-regulate-access-to-reproductive-health-care.
58 Aksu v. Turkey, Judgment, applications nos 4149/04 and 41029/04, 15 March 2012, § 62. 59 S. H. and others v. Austria, op. cit. (voy. note 41), § 100.
60 G.FÜGLISTALER,‘The principle of subsidiarity and the margin of appreciation doctrine in the European Court
of Human Rights’ Post-2011 Jurisprudence, Cahier de l’IDHEAP 295/2016, 2016, p. 47, available at https://serval.unil.ch/resource/serval:BIB_A4FA8A7A4A0B.P001/REF.
61 M.KLATT,‘Positive obligations under the European Convention on Human Rights’, 2011, p. 711, available at
under this article62. This is particularly so in areas giving rise to challenging issues for the resolution of which States must enjoy some discretion63.
Seventhly, a wide margin is extensively recognised to national authorities in charge of adopting and implementing particularly difficult policy decisions. In that sense, in the case S.
H. and others v. Austria, the Court stated that latitude must be granted to national authorities
‘in determining the most appropriate policy for regulating matters of artificial procreation’, but this does not mean that the policy in fine adopted will fall beyond scrutiny64. The accuracy of this last assertion was called into question due the particularly wide margin granted to Austria by the Court in that case65.
Finally ‘where a particularly important facet of an individual’s existence or identity is at
stake the margin allowed to the State will be restricted’66. In the Evans case, although the Court considered that the decision to become a parent was importantly linked to the identity or existence of the applicant, it stated that further factors commanded to recognize a wide margin of appreciation to the United Kingdom67. Later, in the case S. H. and others v. Austria, in which four applicants claimed that their exclusion from the Austrian law on artificial procreation constituted a breach of article 8 ECHR, it recognized that this factor must play a role in determining the scope of the margin of Austria but finally only took it into account in the assessment of the third and fourth complaints68. Judges regretted this approach of the Court that again seemed to have granted precedence to the absence of consensus among States over any other factor69. However, in the case Oliari and others v. Italy, the Court admitted that the need for legal recognition and the core protection of same-sex couples was an important facet of the applicants’ identity and commanded to narrow the margin to Italy70.
62 J.F.AKANDJI-KOMBE,‘Positive obligations under the European Convention on Human Rights - A guide to the
implementation of the European Convention on Human Rights’, Human Rights handbooks, no. 7, Council of Europe, Strasbourg, 2007, p. 18, available at https://rm.coe.int/168007ff4d.
63 VO v. France, Judgment, application no. 53924/00, 8 July 2004, § 125. 64 S. H. and others v. Austria, op. cit. (voy. note 41), § 97.
65 S. H. and others v. Austria, Joint Dissenting opinion of Judges Tulkens, Hirvela, Lazarova Trajkovska and
Tsotsoria, application no. 57813/00, 3 November 2011.
66 Evans v. the United Kingdom, Judgment, application no. 6339/05, 10 April 2007, § 77.
67 Evans v. the United Kingdom, Press release issued by the Registrar, Council of Europe Press division,
application no. 6339/05, available at http://www.enhcc.eu/evans.pdf.
68 S. H. and others v. Austria, op. cit. (voy. note 41), § 100. 69 S. H. and others v. Austria, op. cit. (voy. note 65). 70 Oliari and others v. Italy, op. cit. (voy. note 45), § 177.
The impact of this factor on the scope of the margin appears nevertheless to be restricted in the absence of consensus among States in a particular area71.
71 P.GALLAGHER,‘The European Convention on Human Rights and the margin of appreciation’, UCD Working
papers in Law, criminology & socio legal studies research paper no. 52/2011, 11 January 2011, p. 11, available
2. The obligations of States under article 14 ECHR
Article 14 ECHR prohibits ‘discrimination on any grounds’. In the case Charron and
Merle-Montet v. France, the applicants claimed that France discriminates them on the ground of
their sexual orientation in contravention of article 14 in conjunction with article 8 ECHR. The assessment of this claim commands to analyse the applicability of article 14 in the present case, and then the compliance of France with its obligations under it.
2. A. Applicability
a) Setting up the framework
For the purpose of the applicability of article 14 ECHR three issues must be addressed. Firstly, since this article has no independent existence, it must always be invoked in conjunction with a substantive right of the Convention72. Secondly, it must be decided whether the ground on which is based the alleged discrimination is covered by article 1473. When the Convention was adopted, it set few grounds on which discrimination was prohibited74. These have however soon been admitted as being only indicative75. Thirdly, it must be assessed whether the complaint of discrimination falls within the ambit of the right this article is combined with76.
b) Applying the framework
As a first ground of their complaint, Ms Charron and Ms Merle-Montet invoked article 14 in conjunction with article 8 ECHR77. The Court has ever admitted that when there exists an allegation of unjustified difference in treatment based in the enjoyment of rights to access
72 Thlimmenos v. Greece, op. cit. (voy. note 15), § 40.
73 J.GERARDS,‘The discrimination grounds of article 14 of the European Convention on Human Rights’, Human
Rights Law review, Oxford University Press, 2013, pp. 103-104.
74 Ibidem.
75 Engel and others v. Netherlands, Judgment, application no. 5100/71, 23 November 1976, § 72. 76 JACOBS,WHITE AND OVEY,op. cit. (voy. note 7), p. 641.
reproductive technologies, article 14 must be invoked in conjunction with the substantive right to private and family life78.
The applicants claimed they have been discriminated on the basis of their sexual orientation in contravention of this article. Although sexual orientation does not expressly appear in the indicative list of article 14, it is admitted as covered by it79.
The last issue commands to assess whether the alleged unjustified difference in treatment consisting in denying the applicants the access to MAP on the basis of their sexual orientation falls within the ambit of article 8 ECHR. This requires the complaint to fall either within the general ambit of the right to private and family life, either within the ambit of any right that falls itself within the scope of article 880. Indeed, the prohibition of discrimination enshrined in article 14 ECHR ‘extends beyond the enjoyment of the rights and freedoms, which the
Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention article, for which the States has voluntarily decided to provide’81. The matter is thus whether the right to access MAP falls within the scope of article 8. In the case S. H. and others v. Austria, the Court asserted ‘the right of a couple to conceive a child and to make use of medically assisted
procreation for that purpose is also protected by article 8, as such a choice is an expression of private and family life’82. This position was reaffirmed in the recent case Nedescu v.
Romania83. Consequently, it must be admitted that the complaint of the applicants falls within
the ambit of the right to access MAP that falls itself in the scope of article 8 ECHR84.
2. B. Compliance
The assessment of the compliance of France with its obligations under article 14 ECHR requires addressing two different issues. It must firstly be decided whether there is a difference in treatment of persons in relevantly similar situations or a similar treatment of
78 Schalk and Kopf v. Austria, op. cit. (voy. note 29), § 88; Vallianatos and others v. Greece, op. cit. (voy. note
35), § 71.
79 Salgueiro da Silva Mouta v. Portugal, op. cit. (voy. note 11), § 28. 80 U. KILKELLY, op. cit. (voy. note 9), p. 10.
81 E.B. v. France, op. cit. (voy. note 17), §§ 48-49. 82 S. H. and others v. Austria, op. cit. (voy. note 41), § 82.
83 Nedescu v. Romania, Judgment, application no. 70035/10, 16 January 2018, §§ 70-75.
84 J.M.SCHERPE,‘Medically assisted procreation: this margin needs to be appreciated’, The Cambridge Law
persons in significantly different situations85 (2. B. 1); secondly, since article 14 ECHR only prohibits differences in treatment with ‘no objective and reasonable justification’86, whether the treatment received by the applicants is justified within the meaning of this article87 (2. B. 2).
2. B. 1. The difference in treatment of people in relevantly similar situations or the failure to treat differently people in significantly different situations
a) Setting up the legal framework
The obligation under article 14 ECHR to treat similar cases alike implies that unlike cases must be treated differently88. To prove the incompliance of States with its obligations under this article, the applicants must prove that their situation is comparable to that of other people by reference to some criteria that determine the relevant aspect in which those persons are alike or different89. In cases where sexual orientation is at issue, applicants usually compare their situation to that of different-sex couples by highlighting either the similarity or the difference between them90. The former approach has greatly been used in cases where the Court had to decide whether the failure of States to provide legal means of recognition of their union to same-sex couples was inconsistent with article 1491. The latter is usually adopted in cases where homosexuals or same-sex couples tried to convince the Court on the necessity to recognize the difference between their situation and that of heterosexuals or different-sex couples in order to avoid the discrimination of the formers on their sexual orientation92. It was recently used in the case Bonnaud and Lecoq v. France, where the applicants tried to convince the Court that the difference between their situation of same-sex couples and that of different-sex couples, that consisted in the fact that the rights to marry, to adopt and to access
85 Thlimmenos v. Greece, op. cit. (voy. note 15), § 44. 86 Aksu v. Turkey, op. cit. (voy. note 58), § 43. 87 S.GREER, op. cit. (voy. note 14), p. 11.
88 C. MCCRUDDEN, S. PRECHAL, The concepts of equality and non discrimination in Europe: a practical
approach - European network of legal experts in the field of gender equality, European Commission, Brussels,
2009, p. 12.
89 M.CARTABIA,‘The European Court of Human Rights: Judging nondiscrimination’, International Journal of
Constitutional Law, Vol. 9, October 2011, p. 812.
90 COUNCIL OF EUROPE, Factsheet on sexual orientation issues of May 2018, available at
https://www.echr.coe.int/Documents/FS_Sexual_orientation_ENG.pdf.
91 Salgueiro da Silva Mouta v. Portugal, op. cit. (voy. note 11); E.B. v. France, op. cit. (voy. note 17); X and
others v. Austria, op. cit. (voy. note 16).
92 Thlimmenos v. Greece, op. cit. (voy. note 15), § 42; Taddeucci and Mccall v. Italy, Judgment, application no.
51362/09, 30 September 2016, § 81; Bonnaud and Lecoq v. France, decision on admissibility, request no. 6190/11, 1 March 2018, § 28.
MAP were only granted to the latters, required the French law on parental authority not to be applied the same way to same-sex couples and different-sex couples in order to avoid a discrimination of the formers on the basis of their sexual orientation93. The Court did however not receive this argument and found no violation of article 1494.The failure of the applicants to correctly compare their situation will indeed lead the Court to conclude that there is no violation of this article95. In the case Gas and Dubois v. France, the applicants, a same-sex couple that was denied the access to simple adoption, claimed that France, by failing to treat them like married couples, whom access to simple adoption was granted, did not comply with its obligations under article 1496. The Court stated that same-sex couples and married couples were not in similar legal situation and that, accordingly, France could not be said as failing to comply with its obligations under this article97. The difficulty of the comparison consists in the facts that people are quite never alike in every single respect and at the same time, all people are alike in some respect98, and that the burden of proof is incumbent on the applicant who does not always own the tools needed to appreciate the comparability of his situation99. According to some, this leaded to situations where the comparable situation was not rigorously applied and the very admission of the comparison appeared to in fine depend on the willingness of the Court100.
b) Applying the framework
The applicants, a couple of two women where one of them is biologically unable to procreate101, claimed that they are treated differently than different-sex couples where the man is infertile that, according to them, are in a relevantly similar situation102. The terms of the French law are not equivocal: the law applies to a ‘man’ and a ‘woman’ and excludes same-sex couples from its scope103. While, there is no doubt that they are treated differently
93 Bonnaud and Lecoq v. France, op. cit. (voy. note 92), §§ 28. 94 Bonnaud and Lecoq v. France, op. cit. (voy. note 92), §§ 47-49. 95 J.GERARDS,op. cit. (voy. note 73), pp. 103-104.
96 Gas and Dubois v. France, op. cit. (voy. note 36), §§ 67-73. 97 Ibidem.
98 M.CARTABIA,op. cit. (voy. note 89), p. 812.
99 O.M.ARNARDOTTIR,‘Non-discrimination under article 14 ECHR: the burden of proof’, Scandinavian studies
in Law, 1999-2012, pp. 32-33.
100 Ibidem.
101 Charron and Merle-Montet v. France, op. cit. (voy. note 5), § 4 102 Charron and Merle-Montet v. France, op. cit. (voy. note 5), § 10. 103 Article L2141-2 of the French Public Health Code, 1953.
than different-sex people where the man is infertile, it remains to assess whether their situations are relevantly similar and therefore comparable within the meaning of article 14.
The French law on MAP aims to remedy to the infertility of the couple104. In both compared situations, one of the partners is fertile while the second is not, partners are married and are willing to become parents. The only mean to remedy to the infertility of the partner is by resorting to MAP. In that sense, the situation of the applicants and the one of different-sex couples where the man is infertile are relevantly similar within the meaning of article 14. However it can be argued that while, without this infertility, different-sex couples would have theoretically been able to procreate together, the applicants, as a same-sex couple, would not have been able to and would have had to resort to these means anyway. In that sense, their situations are not relevantly similar. Accordingly, the matter raises whether the complaint of the applicants would not have greater chance of success if they claim that France failed to treat them differently than different-sex couples by highlighting the specific feature that distinguishes the situations of both of them? Biologically unable to procreate together, female same-sex couples have to resort to alternative means to become parents, and, from this perspective, their situation significantly differs from that of different-sex couples. The applicants could thus argue that all female same-sex couples, irrespective of whether they suffer from fertility issues, should be treated differently than different-sex couples, which are, biologically speaking, in a significantly different situation, and that this different treatment should amount to grant them access to MAP on wider grounds than these on which access to MAP is presently granted to different-sex couples. However the comparable situation test commands to take into account the very feature, here the infertility of one of the partners, that make the situation of the applicants looks like or alike that of another group105. Since the secondly envisaged approach ignores this feature, it does not seem appropriate in the present case, but would eventually be for a female same-sex couple that does have any difficulty to procreate. Assuming so, the latters would nevertheless have to convince the Court that the specific feature that distinguishes the situation of female same-sex couples from that of different-sex couples, consisting in the inability of the formers to procreate together, is such as it commands to treat them differently in order to avoid a violation of article 14. This would suggest that the Court admits that, by failing to grant access to MAP to female same-sex couples, irrespective of any fertility issues they suffer from, on wider grounds than the ground
104 Ibidem.
on which it actually grants this access to different-sex couples, France prima facie violates its obligations under article 14 ECHR. The lack of cases analysed in the field of MAP from the perspective of the obligation of States to treat people in significantly different situations alike lets believe that there is few probability that the Court would agree on such reasoning106.
Therefore, the infertility of Ms Charron could lead the Court to recognize that the situation of the applicants is relevantly similar to that of a different-sex couple where the man is infertile and that both are comparable within the meaning of article 14, while this comparability could only be asserted to a lesser extent in case of female same-sex couples where none of the partners suffers from infertility. Assuming so, the Court would admit that, by denying the access to MAP to the applicants, France prima facie violates its obligations under article 14 in conjunction with article 8 ECHR.
2. B. 2. Differences in treatment consistent with article 14 ECHR
a) Setting up the legal framework
Article 14 ECHR prohibits ‘discrimination on any ground’. Any difference in treatment does not result in discrimination, only differences in treatment with no reasonable and objective justification do107. A difference in treatment is justified within the meaning of article 14 when it meets three conditions. The first condition requires the difference in treatment to be created by a provision of domestic law108. The second condition commands that the provision of domestic law establishing such difference pursues a legitimate aim, and the third one requires that there exists ‘reasonable proportionality between the means employed and the aim sought
to be realised’109. States enjoy a margin of appreciation in determining whether these two last conditions are met110.
106 C.MCCRUDDEN,S.PRECHAL,op. cit. (voy. note 88), p. 13. 107 S.GREER, op. cit. (voy. note 14), p. 11.
108 E.B. v. France, op. cit. (voy. note 17), §§ 91-94. 109 Ibidem.
110 J.RINGELHEIM,‘La non-discrimination dans la jurisprudence de la Cour européenne des droits de l’homme -
Bilan d’étape’, CRIDHA working paper, 2017, p. 11, available at
b) Applying the framework to the case
The applicants claimed that they are victims of an unjustified difference in treatment created by the provision L2141-2 of the French Public Health Code111. The first condition under article 14 is thus met. The assessment of the second and the third conditions demands more developments, due to the margin of appreciation that France enjoys. The scope of this margin will depend on factors that have proved to be particularly relevant in matter of MAP.
The first of these factors is the existence of a consensus among Members States towards granting the access to MAP to different-sex couples and to female same-sex couples on the same ground. The ‘ILGA-Europe Rainbow Map’ redacted by the International Lesbian, Gay, Bisexual, Trans and Intersex Association, invoked by the applicants Ms Charron and Ms Merle-Montet when exposing the facts at the origin of their request112, provides a general overview of the practices of States in the area of MAP. It results from this ‘ILGA-Europe Rainbow Map’ that in 2016 12 Member States granted the access to MAP to female same-sex couples113, and that 14 of them granted it in 2017114. In 2018, States like Germany and Italy still adopt a position similar to that of France115, while others like Spain and Belgium grant this access on wider grounds116. Indeed, the Belgian law of 6th July 2007 on MAP and the use of surplus embryos and gametes117 defines the ‘author of the parental project’ as ‘any person
taking the decision to become parent via medically assisted procreation, whether or not it is conducted with its own embryos or gametes’118. While there is no general consensus among States to grant a similar access to MAP to different-sex couples and to female same-sex couples, there is however an emerging trend among them to grant the access to MAP on broader grounds than France does. This emerging trend would not be sufficient in itself to
111 Charron and Merle-Montet v. France, op. cit. (voy. note 5), § 7.
112 Charron and Merle-Montet v. France, Statement of facts, request no. 22612/15, 7 May 2015, pp. 4-5. 113 INTERNATIONAL LESBIAN, GAY, BISEXUAL, TRANS AND INTERSEX ASSOCIATION (ILGA), ILGA-Europe
Rainbow Map, 2016, available at https://www.ilga-europe.org/resources/rainbow-europe/2016.
114 INTERNATIONAL LESBIAN, GAY, BISEXUAL, TRANS AND INTERSEX ASSOCIATION (ILGA), ILGA-Europe
Rainbow Map, 2017, available at https://www.ilga-europe.org/resources/rainbow-europe/rainbow-europe-2017.
115 H.TRAPPE,‘Assisted reproductive technologies in Germany: a review of the current situation’, January 2017,
available at https://link.springer.com/chapter/10.1007/978-3-319-44667-7_13; V. BRUTI, N. M. DI LUCA, A.
MALVASI,S.NAPOLETANO,C.SESTILI,F.SIGNORE,‘2014-2017. How medically assisted reproduction changed
in Italy. A short comparative synthesis with European countries’, July-August 2017, available at
https://www.ncbi.nlm.nih.gov/pubmed/28703839.
116 C.GARRÉ,‘MAP (medically assisted procreation) in Europe - Spain at the forefront’, July 2017, available at
http://www.genethique.org/en/map-medically-assisted-procreation-europe-spain-forefront-67962.html#.WpKcU2Z7Rp8.
117 Belgian Law of 6th July 2007 on MAP and the use of surplus embryos and gametes available at
http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&table_name=loi&cn=2007070632.
narrow the margin of appreciation of France119. Some denounced the excessive reliance of the Court upon this factor in the field of assisted reproduction in order not to recognize a narrower margin of appreciation to States120.
A second factor is the fact that sexual orientation is at issue121. This factor especially plays a role in determining whether a difference in treatment is proportional to the aim sought to be realised122. As stated by the Court in the Vallianotos and others v. Greece, when the margin of appreciation of States is narrow, as this is once the sexual orientation of the applicant(s) is at stake, ‘the principle of proportionality does not merely require the measure chosen to be
suitable in principle for achievement of the aim sought. It must also be shown that it was necessary, in order to achieve that aim, to exclude certain categories of people from the scope of application of the provisions in issue’123. However the Schalk and Kopf jurisprudence called into question the accuracy of this assertion and its application to all cases involving an allegation of discrimination on sexual orientation124. As a reminder, in this case, the Court stated that sexual orientation does not narrow the margin of States in the absence of a common or shared practice among them, and that an emerging trend did not amount to such practice125. Accordingly, since only some States but not the majority of them grant at the present time access to MAP to female same-sex couples, it must be assumed that the latter jurisprudence would apply in casu, and that the Court would recognize that France enjoys a wide margin of appreciation although the sexual orientation of the applicants is at issue.
Thirdly, it could be argued that in the area of MAP France perpetually needs to strike a balance between individual interests and those of the community as a whole and that this circumstance allows the recognition of a wide margin. Some believe that it is in the community’s interest to deny female same-sex couples the access to MAP because such access would enable them to control to a certain extent the genetic characteristics of their child and that this would go against the natural process of procreation126. In that sense, a conflict might exist between the interest of the applicants and those of the community. However, if the Court could receive this argument in case of female same-sex couples where
119 S. H. and others v. Austria, op. cit. (voy. note 41), § 96. 120 N.HERVIEU,op. cit. (voy. note 19).
121 Gas and Dubois v. France, op. cit. (voy. note 36), § 58. 122 Vallianatos and others v. Greece, op. cit. (voy. note 35), § 75. 123 Ibidem.
124 P.JOHNSON,op. cit. (voy. note 34), pp. 589-590.
125 Schalk and Kopf v. Austria, op. cit. (voy. note 29), § 105.
none partners suffers from infertility, the inability to procreate of Ms Charron could lead it to make the applicants, a female same-sex couple suffering from fertility issues, fall within the scope of a law that precisely aims to remedy to the infertility of couples does not give rise to a such conflict between the above mentioned interests of the community and those of the applicants. In the case Dickson v. the United Kingdom, the Court admitted that the circumstances of the case, namely the fact that one of the applicants was serving a prison sentence and that using artificial insemination facilities constituted their only chance to conceive a child, excluded the existence of a real conflict between the applicants’ interest to use artificial insemination facilities and those of the community127. If it reproduces this reasoning here, this factor could play no role in determining the scope of the margin of appreciation of France.
Fourthly, the fact that a case is linked to sensitive moral and ethical issues theoretically allows for a wider margin of appreciation128. However, in matter of MAP, the Court admitted that ‘concerns based on moral considerations or on social acceptability’ are ‘not in themselves
sufficient reasons for a complete ban on a specific artificial procreation in general and that only in exceptional circumstances would such complete ban be a proportionate measure’129. Assuming France comes to justify the exclusion of the applicants from the scope of the French law on MAP by referring to the fact that MAP is linked to moral concerns only, it can thus be assumed that the Court would adopt the same reasoning.
To sum-up it must be admitted that the scope of the margin that States enjoy in implementing their obligations under article 14 in the area of MAP is pretty wide130. However, the particular fact that one of the applicants suffers from infertility could lead the Court to recognize a narrower margin of appreciation to France in determining the aim pursued by its refusal to grant access to MAP to the applicants and the extent to which this refusal is proportionate. Assuming so, the Court could, more easily than in cases of female same-sex couples where none partners suffer from infertility, find a violation by France of its obligations under article 14 in conjunction with article 8 ECHR.
127 Dickson v. The United Kingdom, Judgment, application no. 44362/04, 4 December 2007, §§ 77-85. 128 Oliari and others v. Italy, op. cit. (voy. note 45), § 177.
129 S. H. and others v. Austria, op. cit. (voy. note 41), § 54.
130 A.MULLIGAN,‘Reproductive rights under article 8: the right to respect for the decision to become or not to
3. The obligations of States under article 8 ECHR in relation to MAP
When seized of a complaint of violation of article 8 ECHR, the Court must firstly assess the applicability of this article to the case131, what requires it to decide whether the above complaint gives rise to an issue under the right to private and family life132. In the present case, it requires the Court to decide whether the alleged violation of the right to access MAP of the applicants gives rise to an issue under this article. This question must be answered affirmatively since the case S. H. and others v. Austria133.
The second step commands the Court to assess the compliance of France with its obligations under article 8. Several obligations flow from this article and these can either be formulated positively or negatively134. Depending on the framework of the complaint of the applicants, the Court will privilege one formulation over another135. By referring to the applicant’s complaint136, it seems that the Court could carry out the assessment of compliance in three different ways: firstly it could analyse article 8 as ordering France not to interfere with the rights to access MAP of the applicants (3. A), secondly it could decide whether there exists a general obligation to access MAP under this article (3. B), then, assuming such general obligation does not exist, whether there exists a specific obligation to grant this access limited to conditions of France (3. C).
3. A. The obligation not to interfere with the right to access MAP of the applicants
a) Setting up the legal framework
Article 8 ECHR does not prohibit any interference but only these that are not justified137. Interference is justified within the meaning of this article when it satisfies three conditions. The first condition requires that ‘the impugned measure both to have some basis in domestic
law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of article 8’138. The Court interprets
131 I.ROAGNA,op. cit. (voy. note 10), p. 10.
132 COUNCIL OF EUROPE, Guide on article 8 of the European Convention on Human Rights - Right to respect for
private and family life, Strasbourg, 31 December 2016, p. 7, available at
http://www.refworld.org/docid/5a016ebe4.html.
133 See section ‘2. A. Applicability b) Applying the framework to the case’. 134 COUNCIL OF EUROPE, op. cit. (voy. note 132), p. 8.
135 Aksu v. Turkey op. cit. (voy. note 58), §§ 59-61.
136 Charron and Merle-Montet v. France, op. cit. (voy. note 5), § 11. 137 COUNCIL OF EUROPE, op. cit. (voy. note 132), p. 8.
this condition as requiring the law to be adequately accessible and foreseeable, by giving individuals ‘an adequate indication as to the circumstances in which and the conditions on
which the authorities are entitled to resort the measures affecting their rights under the Convention’139. The second condition requires the interference to pursue a legitimate aim, and the third one requires this interference to be ‘necessary in a democratic society’ for the protection of one of the following objectives: the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, protection of health or morals, protection of the rights and freedoms of others140. The necessary test within the meaning of article 8 requires that proportionality exists between the aim pursued and the means used to achieve this aim, that the means used are strictly necessary to what is required to achieve this aim, that a balance exists between the competing interests at stake, etc.141. States enjoy a margin of appreciation in determining whether these two last conditions are met142.
b) Applying the framework to the case
If the Court decides to analyse the complaint of the applicants from the perspective of the interference, it will have to decide whether this interference is justified within the meaning of article 8.
In France the right to access MAP is granted by the French law on MAP that is an integral part of the French Public Health Code. This Code is formulated with sufficient precision to enable individuals to regulate their conduct143. This leads to admit that the first condition according to which inferences are justified under article 8 is met. In assessing whether the aim pursued by its inference and the extent to which it is necessary in a democratic society, France enjoys a margin of appreciation. Among the factors that have to be taken into account in determining the scope of the margin under article 8, some are particularly relevant in matter of MAP.
139 Fernandez Martinez v. Spain, Judgment, application no. 56030/07, 12 June 2014, § 117. 140 COUNCIL OF EUROPE,op. cit. (voy. note 1).
141 I.ROAGNA,op. cit. (voy. note 10), pp. 44-45. 142 U. KILKELLY, op. cit. (voy. note 9), p. 7.
The first of them is the existence of a consensus among Member States to grant access to MAP to female same-sex couples144. As previously pointed out, the emerging trend existing among States would probably not be sufficient to narrow the margin of France, as denounce the criticisms about the application of this factor in the area of MAP145. Secondly, as previously explained146, while the fact that sexual orientation is at issue theoretically narrows the margin of States147,the application of this assertion is called into question by the Schalk
and Kopf jurisprudence148, in situations where only exists an emerging, but not yet established, common practice among States149. Thirdly, by referring to the Oliari and others v. Italy case, it can be assumed that the quality of the French decision-making process, as one
similar of that of Italy, in the extent that the French law on MAP provides a right in limited circumstances, whose determination is left to domestic courts, which are not bound by the rule of precedent150, would command to restrict the margin recognized to France. Fourthly, the fact that MAP is linked to moral or ethical considerations, strengthened by the absence of consensus among States in this field, would allow for a wide but not ‘beyond scrutiny’ margin151. Fifthly, the fact that one of the applicants suffers from fertility issues would in principle not make the factor according to which the need to strike a fair balance between competing interests widen the margin of States play into account in the present case, while this would probably be different in case where none of the applicants encounters difficulties to procreate152. Sixthly, the Court recognized in the case S. H. and others v. Austria, that policy decisions for regulating matters of artificial procreation commanded to grant latitude to States in adopting and implementing these due to the difficulty they give rise to153. However, since the terms of the French law do no really let a duty of interpretation to French authorities, neither they offer them discretionary power to take such decisions154, there are doubts on the reproduction of this assertion in the present case. Seventhly, it is generally admitted that the
144 S. H. and others v. Austria, Separate opinion of Judge de Gaetano, application no. 57813/00, 3 November
2011.
145 See section ‘2. B. Compliance b) Applying the framework to the case’. 146 See section ‘2. B. Compliance b) Applying the framework to the case’. 147 Gas and Dubois v. France, op. cit. (voy. note 36), § 58.
148 Schalk and Kopf v. Austria, op. cit. (voy. note 29), § 105. 149 P.JOHNSON,op. cit. (voy. note 34), pp. 589-590.
150F.HARTMAN, ‘A: La procréation médicalement assisstée’,Le droit des personnes et de la famille à l’épreuve
des droits fondamentaux présenté par l’IEJ de Paris 1, available at https://iej.univ-paris1.fr/openaccess/libertes-famille/lecon3/sect1/i/a-procreation-medicalement-assistee/.
151 S. H. and others v. Austria, op. cit. (voy. note 41), § 54 and § 97. 152 See section ‘2. B. Compliance b) Applying the framework to the case’. 153 S. H. and others v. Austria, op. cit. (voy. note 41), § 97.
