Decision no. 2022-1003 QPC of 8 July 2022

On 16 May 2022, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d’État (decision no. 459000 of 12 May 2022). This application was made by the association, Groupe d’information et d’action sur les questions procréatives et sexuelles. It was registered by the general secretariat of the Constitutional Council under no. 2022-1003 QPC. It relates to the conformity of Article L. 2141-2 of the Public Health Code, in its formulation resulting from Act No. 2021-1017 of 2 August 2021 on bioethics, with the rights and freedoms guaranteed by the Constitution.
Having regard to the following texts:

• the Constitution;
• Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
• the Public Health Code;
• Act No. 2021-1017 of 2 August 2021 on bioethics;
• the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;
  Having regard to the following documents:
• the observations of the applicant association, registered on 25 May 2022;
• the observations of the Prime Minister, registered on 27 May 2022;
• the second observations of the applicant association, registered on 8 June 2022;
• the additional documents produced and appended to the case files;
  After having heard Magaly Lhotel, lawyer at the Paris Bar, on behalf of the applicant association, and Antoine Pavageau, appointed by the Prime Minister, at the public hearing of 28 June 2022;
  And after having heard the rapporteur;
   
   
  THE CONSTITUTIONAL COUNCIL DECIDED THAT:

1. Article L. 2141-2 of the Public Health Code, in its formulation resulting from the aforementioned Act of 2 August 2021, stipulates:
   “Medically assisted procreation is intended to respond to a parental project. Any couple formed by a man and a woman, or two women, or any unmarried woman shall have access to medically assisted procreation after the applicants’ individual interviews with the members of the multidisciplinary clinical-biological medical team carried out in accordance with the procedures set out in Article L. 2141-10.
   “Such access shall not be subject to any difference in treatment, in particular with regard to the marital status or sexual orientation of applicants.
   “Both members of the couple, or the unmarried woman, must provide consent prior to the artificial insemination or embryo transfer.
   “In the case of a couple, the following are obstacles to insemination or embryo transfer:
   “1° The death of one of the members of the couple;
   “2° The filing of an application for divorce;
   “3° The filing of an application for legal separation;
   “4° The signing of a divorce or legal separation settlement by mutual consent in accordance with the procedures set out in Article 229-1 of the Civil Code;
   “5° Termination of shared residence;
   “6° The written revocation of the consent provided for in the third section of this article by one or the other of the members of the couple to the doctor responsible for implementing medically assisted procreation.
   “A follow-up study is offered to the recipient couple or to the recipient woman, who consents in writing.
   “The age conditions required to benefit from medically assisted procreation are set by decree in the Conseil d’État, taken after the opinion of the French biomedicine agency (Agence de la Biomédecine). They take into account the age-related medical risks of procreation as well as the interests of the unborn child.
   “When oocyte collection by puncture takes place in the context of a medically assisted procreation procedure, it may be proposed to carry out oocyte preservation at the same time.”
2. The applicant association criticises these provisions for denying access to medically assisted procreation to single men, or couples formed of two men, even those of them who, having been born female as recorded on the civil register, have changed their gender designation, and may be able to become pregnant. In so doing, they would create an unjustified difference in treatment between persons with gestational capacities according to their gender as indicated on the civil register. They would thus be contrary to the principles of equality before the law and equality between men and women. For the same reasons, the legislator also disregarded the scope of their competence in conditions affecting the aforementioned rights.
3. According to the applicant association, the referred provisions also infringe personal freedom and the right to have a normal family life, since they force transgender men to give up the right to change their gender designation on the civil register in order to retain the possibility of accessing medically assisted procreation.
4. Consequently, the application for a priority preliminary ruling on the issue of constitutionality concerns the words, “Any couple formed by a man and a woman, or two women, or any unmarried woman, have access to medically assisted procreation” in the second sentence of the first section of Article L. 2141-2 of the Public Health Code.
5. It is at all times possible for the legislator, ruling in the area reserved to them, to adopt new provisions for which they determine the appropriate nature, and to amend previous texts or to repeal them by substituting other provisions, if necessary. However, it is on condition that the exercise of this power does not result in depriving requirements of a constitutional nature of legal guarantees. Article 61-1 of the Constitution does not confer on the Constitutional Council a general mandate for judgements that is similar to that of Parliament, but only empowers it to rule on the conformity of the legislative provisions submitted for its consideration with the rights and freedoms guaranteed by the Constitution.
6. According to Article 6 of the Declaration of Human and Civic Rights of 1789, the law “must be the same for all, whether it protects or punishes”. The principle of equality does not preclude the legislator from regulating different situations differently, or from derogating from equality on grounds of general interest, provided that, in either case, the resulting difference in treatment is directly related to the purpose of the law establishing it.
7. The disputed provisions open access to medically assisted procreation to couples consisting of a man and a woman, or two women, and to unmarried women. They thus deprive single men, or couples formed of two men, of this access. It follows that persons born female in the civil register who have obtained a change in their gender designation while retaining their gestational capacity are excluded.
8. It is clear from the preparatory work that, in adopting these provisions, the legislator intended to allow equal access for women to medically assisted procreation, without distinction on the basis of their marital status or sexual orientation. In doing so, they considered, in the exercise of their jurisdiction, that the difference in situation between men and women, with regard to civil register rules, could justify a difference in treatment, in relation to the purpose of the law, as regards the conditions of access to medically assisted procreation. It is not for the Constitutional Council to substitute its assessment for that of the legislator on the taking into account, in this matter, of such a difference in situation.
9. Consequently, the objection based on the violation of the principle of equality must be dismissed.
10. The disputed provisions, which are not judged as not acting fully within the competence of jurisdiction and do not infringe the right to have a normal family life, personal freedom or any other right or freedom guaranteed by the Constitution, must be declared as conforming with the Constitution.
     
    THE CONSTITUTIONAL COUNCIL DECIDES:
    Article 1. - The words, “Any couple formed by a man and a woman, or two women, or any unmarried woman, have access to medically assisted procreation”, appearing in the second sentence of the first section of Article L. 2141-2 of the Public Health Code, in its formulation resulting from Act No. 2021-1017 of 2 August 2021 on bioethics, conform with the Constitution.
    Article 2. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned ordinance of 7 November 1958.
     
    Ruled by the Constitutional Council in its 7 July 2022 session, with the following members present: Laurent FABIUS, President, Jacqueline GOURAULT, Alain JUPPÉ, Corinne LUQUIENS, Véronique MALBEC, Jacques MÉZARD, François PILLET, Michel PINAULT and François SÉNERS.

Published on 8 July 2022.