Tempered Hope? A Qualified Right to Know One's Genetic Origin: Odièvre v France

Published date01 July 2004
Date01 July 2004
Tempered Hope? AQuali¢ed Right to Know One’s
Genetic Origin: Odie
'vre vFrance
'se Callus
Traditionally accepted by presumption, our genetic origin is now a matter of
scienti¢c truth. Yet access to this truth may be di⁄cult to obtain and indeed, in
some circumstances the law provides for the truth to be dissimulated.The case of
'vre vFran ce
illustrates one situation in which the national law of a European
union State allows for the biological origins of amother to be denied and for her
maternity to be kept secret from her own child (anonymous birth).
Other situa-
tions are more widespread across Europe and involve the use of anonymously
donated gametes in assisted reproduction. In all of these cases, the resultingchild
is left with a blank page as to his or hergenetic origins.
Ye t i n Odie
'vre vFrance,the
EuropeanCourt of Human Rights reiterated the existenceof a right to knowone’s
genetic origin and the circumstancessurrounding one’sbirth. However, the e¡ec-
tiveness of this general right as applied by the Court in the case of anonymous
birth, is limited. By relying on the diversity and evolution of di¡erent national
laws, the majority of the Court found that the French lawrelating to autonomous
did not violate the right previously recognised for an individual to obtain
information relating to hi s or her identity and development (I). Although the par-
ticular facts of the case may justify this judgment, it remains to be seen whether
School of Law, University of Reading.
'vre vFrance, [2003]1 FCR 621.The potential serious repercussions of the case can be felt bythe
fact that the third section of the Court who was initially seized of the a¡air, transferred it to the
Grand Chamber of17 judges,as provided for in article 30 of the European Convention. Article 30
states that when a case raises a serious question relating to the interpretation of the Conventionor
when the solution maycontradict existing case law, it should be transferred to the Grand Chamber.
2 ‘Anonymous birth’has its origins i n a 17
Century practicewhich al lowedwomen to abandon their
child secretly in a revolving‘tour’, often run by a convent. After the French Revolution,the law
providedthat free medical care should be providedfor the mothers to give birth safelywithout her
having to legally recognise the child as hers.The current law on anonymous births is found in
article L.222-6 Code de l’action socialeet des familles. Articles 341 and 3 41-1Code civil further provide
that althougha chi ld can seek a legal declarationas to its mother, this will not be possible where the
mother has requested an anonymous birth.
3 It is to be noted that the adjective‘anonymous’ only applies between the donorand the recipient:
the clinic who organises the donation obviouslycan identify the donor and recipients.Thus, it is
rather a question of secrecy than anonymity.
4 ‘W|thout roots, a part of yourself has been amputated’: declaration made by Pascale Odie
following the dismissal of her application tothe European Court of Human Rights reported in
the French daily, Le Figaro, Friday 14
February 2003.
5 Law no.93 -22 of 8th January1993 inserting Articles 341a nd 341-1Code civiland the Law no. 2002-
93 of 22
January 2002 relating to access byadopted persons and people in State care to informa-
tion about their origins.
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(4) MLR 658^683

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT