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Decision no. 2012-248 QPC of 16 MAY 2012

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Mr Mathieu E. [Access to information regarding personal origins]

On 16 March 2012, 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. 355087 of 16 March 2012) on behalf of Mr Mathieu E., raising the conformity of Articles L. 147-6 and L. 222- 6 of the Code of Social Action and Families with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to the Code of Social Action and Families;

Having regard to Law no. 2002-93 of 22 January 2002 on access to information regarding personal origins of adopted persons and children in care;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations on behalf of the applicant by Christel Corbeau-Di Palma Esq., Attorney at the Paris Bar, registered on 6 April 2012;

Having regard to the observations of the Prime Minister, registered on 10 April 2012;

Having regard to the documents produced and appended to the case files;

Having heard Corbeau-Di Palma Esq. on behalf of the applicant, and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 10 May 2012;

Having heard the Rapporteur;

1. Considering that pursuant to Article 147-6 of the Code of Social Action and Families: "After it has established that they intend to pursue their application, the board shall inform the persons referred to in paragraph 1 of Article L. 147-2 of the identity of the biological mother:

" – if it has already received an express declaration waiving the right for her identity to remain secret;

" – if there has been no express declaration of her intention that her identity remain secret, after having ascertained her wishes;

" – if one of its members or a person instructed by it has been able to secure her express consent in a manner which respects her private life;

" – if the mother has died, unless she expressed her intention to the contrary when asked regarding access by the child to information relating to its origins. In such cases, one of the members of the board or a person instructed by it shall inform the family of the biological mother and offer assistance.

"If the biological mother has expressly consented to her identity no longer being secret or, in the event that she has died, if she did not object to her identity being disclosed after her death, the board shall inform a child who has filed a request for access to information relating to its personal origins of the identity of the persons referred to under paragraph 3 of Article L. 147-2.

"After it has established that they intend to pursue their application, the board shall inform the persons referred to in paragraph 1 of Article L. 147-2 of the identity of the biological father:

" – if it has already received an express declaration waiving the right for his identity to remain secret;

" – if there has been no express declaration of his intention that his identity remain secret, after having ascertained his wishes;

" – if one of its members or a person instructed by it has been able to secure his express consent in a manner which respects his private life;

" – if the father has died, unless he expressed his intention to the contrary when asked regarding access by the child to information relating to its origins. In such cases, one of the members of the board or a person instructed by it shall inform the family of the biological father and offer assistance.

"If the biological father has expressly consented to his identity no longer being secret or, in the event that he has died, if he did not object to his identity being disclosed after his death, the board shall inform a child who has filed a request for access to information relating to his personal origins of the identity of the persons referred to under paragraph 3 of Article L. 147-2.

"The board shall inform the persons referred to in paragraph 1 of Article L. 147-2 of information which does not breach the confidential nature of the identities of the biological father and mother, which shall be transmitted through health establishments, departmental services and the bodies mentioned in the first subparagraph of Article L. 147-5, or which has been collected from the biological father or mother, in a manner which respects their private life, by a member of the board or a person instructed by it";

2. Considering that pursuant to Article L. 222-6 of that Code: "Any woman who requests during childbirth that the fact of her admission and her identity be maintained secret by a health establishment shall be informed of the legal consequences of such a request and the importance that every person be able to know its origins and history. She shall therefore be invited to provide, if she consents to it, information concerning her health and that of the father, the origins of the child and the circumstances of the birth along with a sealed envelope containing details of her identity. She shall be informed of her right to waive the right for her identity to remain a secret at any time, and that unless she does so, her identity will only be disclosed in accordance with the conditions provided for under Article L. 147-6. She shall also be informed that she may disclose her identity at any time in a sealed envelope or complete the information which she provided at the time of birth. The first names given to the child and, as the case may be, a mention of the fact that they were given by the mother, as well as the gender of the child and the date, place and time of its birth shall be mentioned on the outside of this envelope. These formalities shall be complied with by the persons falling under Article L. 223-7 after being informed under the responsibility of the director of the health establishment. Should this not occur, they shall be complied with under the responsibility of the director.

"The costs of accommodation and childbirth for women who requested upon admission to a public or approved private establishment that their identity remain secret shall be covered by the children's social assistance service for the department in which the establishment is based.

"Upon their request or with their agreement, the women referred to in the first subparagraph shall receive psychological and social assistance from the children's social assistance service.

"No identification document shall be requested and no inquiries shall be carried out with regard to the application of the first two subparagraphs.

"The costs of accommodation and childbirth for women who have not requested that their identity remain secret but have proposed their child for adoption shall also be covered by the children's social assistance service for the department in which the establishment is based";

3. Considering that, according to the applicant, in allowing a woman to give birth without disclosing her identity and in only permitting the requirement of secrecy to be removed with the consent of the woman or, in the event of her death, only if she failed to express her intention to the contrary whilst alive, the contested provisions violate the right to respect for private life and the right to conduct a normal family life;

4. Considering that pursuant to the eleventh recital to the Constitution of 27 October 1946, the Nation "shall guarantee to all, notably to children, mothers (···) protection of their health"; that the legislature is at liberty at any time, when ruling on the matters within its jurisdiction, to amend earlier legislation or to repeal and replace it, as the case may be, with other provisions provided that, when doing so, it does not encroach upon the legal guarantees of constitutional requirements;

5. Considering that Article 2 of the Declaration of the Rights of Man and the Citizen of 1789 provides that: "The aim of any political association is the preservation of the natural and imprescriptible rights of man. These rights are freedom, property, security, and resistance to oppression"; that the freedom proclaimed by this Article implies privacy; that the right to conduct a normal family life results from the second paragraph of the 1946 Preamble which provides that: “The Nation provides the individual and the family the necessary conditions for their development”;

6. Considering that the provisions of Article L. 222-6 of the Code of Social Action and Families grant all women the right to request during childbirth that their identity and the fact of their admission be maintained secret and impose the costs of accommodation and childbirth on the public purse; that in thus guaranteeing a right of anonymity and a guarantee that the costs of childbirth in a health establishment will be covered, the legislature intended to avoid the conduct of pregnancies and childbirth under conditions liable to endanger the health both of the mother as well as the child and to prevent infanticides or the abandonment of infants; that it accordingly pursued the objective of constitutional standing of the protection of health;

7. Considering that the aforementioned Law of 22 January 2002 amended Article L. 222-6 of the Code of Social Action and Families with the goal, in particular, of ensuring that women giving birth who request that their identity remain secret be informed of the legal consequences which will result for the infant as well as the importance for the latter of knowing its origins and that they be encouraged to provide information concerning their health, that of the father, the origins of the child and the circumstances of its birth; that the provisions of Article L. 147-6 of the same Code, as resulting from the same Law, specify the conditions under which the requirement of secrecy may be lifted, provided that the agreement of the biological mother is obtained; that this Article assigns in particular to the National Council for Access to Information regarding Personal Origins the task of tracking down the biological mother, upon request by the child, and of obtaining as the case may be the consent of the mother for her identity to be disclosed or, if she has died, of verifying that she did not express her intention to the contrary when previously requested; that the legislature accordingly intended to facilitate access by children to information relating to their personal origins;

8. Considering that in permitting the mother to object to the disclosure of her identity even after her death, the contested provisions seek to assure respect in an effective manner for the purposes of the protection of health of her stated intention to ensure that the fact of her admission and identity remain secret during childbirth by administering, as far as possible and using appropriate measures, access by children to information relating to their personal origins; that it is not for the Constitutional Council to adopt its own assessment in place of that of the legislature regarding the balance thus struck between the interests of the biological mother and those of the child; that the contested provisions have not deprived the constitutional requirements relating to the protection of health of legal guarantees; that they have no more violated the requirement of respect for private life and the right to lead a normal family life;

9. Considering that Articles L. 147-6 and L. 222-6 of the Code of Social Action and Families do not violate any right or freedom guaranteed under the Constitution,

HELD :

Article 1. – Articles L. 147-6 and L. 222-6 of the Code of Social Action and Families are constitutional.

Article 2. – This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session on 16 May 2012, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr Pierre STEINMETZ.

Announced on 16 May 2012.