A positive ruling underpinned by fragile foundations
The ban on heterologuos assisted reproductive technologies in conformity with the European Convention of Human Rights.
In November 2010, judging the case S. H. v. Austria, the European Court of Strasbourg decided that banning certain assisted reproductive technologies (ART) does not violate the European Convention on Human Rights (ECHR).
ART, originally meant to help infertile couples to have the child they wanted, have been successively expanded to encompass situations of increasing manipulation, selection and destruction of embryos, access not only of infertile couples but of single persons or same sex couples, use of gametes other than the couple’s (heterologous ART), recourse to a third-person’s womb, all situations that raise increasing social and ethical concerns.
With specific regard to heterologous ART, it has been limited by some members of the Council of Europe, for example, Austria, Germany, Italy and Lithuania. Austrian legislation in particular, prohibits both ova and sperm donation for IVF, while in the case of insemination (where sperm is introduced into a woman's reproductive organs), sperm donation is permitted.
What was at stake in the present case was the question of knowing whether such provisions in Austrian legislation constitute an offense contrary to the ECHR. In a first judgment of 2010 by a Chamber of the First Section of the Court, it was ruled that such prohibition violated Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life).
On 4 October 2010, the case was referred to the Grand Chamber which, on 3 November 2011, reversed the previous judgement at Chamber level, concluding both that there is no obligation on the State to allow certain forms of ART, and also that prohibiting some of them – or indeed all of them – is still within its margin of appreciation.
In the Court’s view, such margin is quite wide, as there is no consensus or clear common ground among Member States and the respective legislations concerning the interests at stake and the proper means to protect them, which is common when what is in question are sensitive ethical issues.
The ruling, despite its utmost importance and very positive features, does indeed present some undeniable flaws, some of them pointed out by Judge Vincent A. de Gaetano, in a far-sighted Separate Opinion.
The Court accepted, in apparent contradiction, that Article 8 is applicable to the case, which means that, in its understanding, such legal disposition comprises the “right of a couple to conceive a child and to make use of medically assisted procreation for that purpose”. Nevertheless, this understanding is aligned with a previous one held in the case Dickson v. UK, where the Court found that the “right to respect for (the spouse’s) decision to become genetic parents” is incorporated in Article 8.
Such individualist perspective, together with lack of proper acknowledgement and of a weightier definition of the parameters of Article 8, and a relativistic assessment of the interests, values and goods at stake (among them human dignity and dignity of procreation, or the best interests of the children to born), seems to be a fragile foundation for a ruling, to say the least.
Moreover, while affirming that it should scrutinize only whether the prohibitions in question were justified at the time the Austrian National Court considered the case, the Strasbourg Court has not relinquished its right to have regard for subsequent developments. And, although recognizing it cannot substitute for the State in determining the most appropriate policy with regard to ART – not because of considerations of competence, but because the State is “in a better position” to do that – the Court nevertheless made it clear that Austria’s policy is misaligned with an “emerging European consensus” with regard to allowing gamete donation, suggesting that it should be reviewed.
Therefore, it is likely that the question will be posed again, maybe in a judicial challenge to another, similar, piece of legislation from another member of the Council of Europe; and it is possible that a different, less positive ruling will then be issued.