The decision from the State Council overrules an earlier ruling of a lower tribunal which denied Mariana Gomez-Turri access to her husband's sperm.
Gomez-Turri had been living in France with her husband, Nicola Turri, when he developed lymphatic cancer. Prior to chemotherapy, Turri had his sperm cryopreserved so that he could still have children with Gomez-Turri should the treatment make him infertile. The treatment was unsuccessful, however, and Turri, who was Italian, died in July 20312.
After his death, Gomez-Turri returned to Spain. She had hoped to use the sperm for IVF as posthumous insemination is legal there, but the French tribunal's decision went against her.
However, the State Council said that if French law - which prohibits both posthumous insemination and export of gamete for that purpose - were to be applied in this case, it would jeopardise 'in a manifestly excessive way, the claimant's right to respect for his private and family life'.
The State Council nonetheless maintained that French law on posthumous insemination was compliant with the European Convention on Human Rights.
The council also related that Gomez-Turri had returned to Spain 'without the intention to bypass the French law' but then faced 'a situation in which the exportation of the gametes stored in France was the only way for her to exercise her right under Spanish law'.
David Simhon, a lawyer instructed by Gomez-Turri, said that the decision was 'extraordinary', in the sense of being out-of-the-ordinary, and was therefore appropriate considering his client's 'exceptional situation'. Simhon added that, following the decision, Gomez-Turri hoped for the transport of Turri's gametes to occur 'in the shortest possible time, in the best possible conditions'.