Information Note on the Court’s case-law No. 146

November 2011

S.H. and Others v. Austria [GC] - 57813/00

Judgment 3.11.2011 [GC]

Article 8

Article 8-1

Respect for family life

Respect for private life

Prohibition under domestic law on the use of ova and sperm from donors for in vitro fertilisation: no violation

Facts – The applicants were two married couples. As they were infertile, they sought to have recourse to medically assisted procreation. The onl y means by which they could have a child of which one of them was the genetic parent was in vitro fertilisation (IVF) using sperm from a donor (in the case of the first couple) or eggs (in the case of the second couple). Both methods were illegal under the Austrian Artificial Procreation Act, which prohibited the use of sperm from a donor for IVF treatment and egg donation in general. That Act did, however, allow other methods of assisted procreation, in particular IVF using eggs and sperm from persons marr ied to each other or living together as man and wife (homologous procreation techniques) and, in exceptional circumstances, sperm donation for in utero fertilisation. The applicants lodged an application with the Constitutional Court, which held that there had been an interference with their right to respect for their family life, but that this was justified because it was designed to preclude both the creation of unusual family relationships (a child with two mothers, one the biological mother and the othe r a “surrogate” mother) and the exploitation of women.

In its judgment of 1 April 2010 the Chamber found a violation of Article 14 of the Convention in conjunction with Article 8 both in respect of the female applicants and the male applicants (see Informa tion Note no. 129).

Law – Article 8:The right of a couple to conceive a child and to make use of medically assisted procreation for that purpose was protected by Article 8, as such a choice was a form of expression of private and family life. Accordingly, that provision was applicable to the present case. The Court noted that the applicants had been denied medically assisted procreation as a result of the operation of a legal provision that they had unsuccessfully challenged before the domestic courts. The Court examined their complaint from the standpoint of an interference with the exercise of their right to use techniques of artificial procreation. The impugned measure was prescribed by law and pursued the legitimate aims of the protection of health or mo rals and the protection of the rights and freedoms of others.Since the judgment of the Constitutional Court, many developments in medical science had taken place to which a number of Contracting States had responded in their legislation. However, the Court was not required to determine whether or not the prohibition of gamete donation was now justified under the Convention, but whether that measure was justified at the time when the Austrian Constitutional Court had examined the case. There was now a clear trend in the legislation of the Contracting States towards allowing gamete donation for the purpose of in vitro fertilisation, which reflected an emerging European consensus. That consensus was not, however, based on settled and long-standing principles es tablished in the law of the member States but rather reflected a stage of development within a particularly dynamic field of law and did not decisively narrow the margin of appreciation of the State. Since the use of IVF treatment had given rise then and c ontinued to give rise today to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments, and since the questions raised by the case touched on areas where there was not yet clear common ground amongst the m ember States, the Court considered that the margin of appreciation to be afforded to the respondent State must be a wide one.

(a) Egg donation – In an area as sensitive as that of artificial procreation, concerns based on moral considerations or on social acceptability of the techniques in question must be taken seriously. However, these were not in themselves sufficient reasons for a complete ban on a specific artificial procreation technique such as egg donation. Notwithstanding the wide margin of apprec iation afforded to the Contracting States, the legal framework devised for this purpose must be shaped in a coherent manner which allowed the different legitimate interests involved to be adequately taken into account. The Austrian legislature had not comp letely ruled out artificial procreation as it had allowed the use of homologous techniques. Austrian law was based on the idea that medically assisted procreation had to remain as close as possible to natural conception in order to avoid possible conflicts between biological and genetic mothers in the wider sense. In doing so, the legislature had tried to reconcile the wish to make medically assisted procreation available and the existing unease among large sections of society as to the role and possibiliti es of modern reproductive medicine. Furthermore, the Austrian legislature had established specific safeguards and precautions under the Artificial Procreation Act, namely, reserving the use of artificial procreation techniques to specialised medical doctor s who had particular knowledge and experience in this field and were themselves bound by the ethical rules of their profession, and statutorily prohibiting the remuneration of gamete donation. Those measures were intended to prevent potential risks of euge nic selection and their abuse and to prevent the risk of exploitation of women in vulnerable situations as ovum donors. With regard to the concerns about creating relationships in which the social circumstances deviated from the biological ones, the instit ution of adoption had evolved over time and now provided a satisfactory legal framework for such relationships. Similarly, a legal framework satisfactorily regulating the problems arising from ovum donation could also have been adopted. However, the splitt ing of motherhood between a genetic mother and the one bearing the child differed significantly from adoptive parent-child relations and had added a new aspect to the issue. The central question in terms of Article 8 of the Convention was not whether a dif ferent solution might have been adopted by the legislature that would arguably have struck a fairer balance, but whether, in striking the balance at the point at which it had, the Austrian legislature had exceeded the margin of appreciation afforded to it under that Article. In determining that question, the Court attached some importance to the fact that there was no sufficiently established European consensus as to whether egg donation for in vitro fertilisation should be allowed. The prohibition of egg d onation by the Austrian legislature was therefore compatible with Article 8.

(b) Sperm donation – The same considerations were relevant for the prohibition of sperm donation. The fact that the Austrian legislature had enacted an Artificial Procreation Act prohibiting sperm and egg donation for the purposes of in vitro fertilisation without at the same time proscribing sperm donation for in vivo fertilisation, which was a technique which had been tolerated for a long time and had become commonly accepted by society, was a matter of significance in the balancing of the respective interests and could not be considered solely in the context of the efficient policing of the prohibitions. It showed, rather, the careful and cautious approach adopted by the Austria n legislature in seeking to reconcile social realities with its approach of principle in this field. In that connection there was no prohibition under Austrian law on going abroad to seek treatment for infertility that used artificial procreation technique s not allowed in Austria and in the event of successful treatment the Civil Code contained clear rules on paternity and maternity that respected the wishes of the parents.

(c) Conclusion – Neither in respect of the prohibition of egg donation for the purp oses of artificial procreation nor in respect of the prohibition of sperm donation for in vitro fertilisation under section 3 of the Artificial Procreation Act had the Austrian legislature exceeded the margin of appreciation afforded to it at the relevant time.

The Austrian Parliament had not thus far undertaken a thorough review of the rules governing artificial procreation, taking into account the relevant dynamic developments in science and society. The Austrian Constitutional Court had observed that med ical science at the time and the consensus existing in society were subject to developments that the legislature would have to take into account in future. Although the Court had concluded that there had been no violation of Article 8 in the present case, it observed that the area in question, in which the law appeared to be continuously evolving and which was subject to particularly dynamic scientific and legal developments, needed to be kept under constant review by the Contracting States.

Conclusion : no violation (thirteen votes to four).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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