PARTIALLY DISSENTING OPINION OF JUDGE STEINER

I entirely agree with the majority that there has been a breach of Article 14 of the Convention read in conjunction with Article 8 as regards the first and second applicant. However, I do not agree that there has been a breach of these provisions as regards the third and fourth applicant. In my opinion the prohibition of heterologous artificial procreation techniques for in vitro fertilisation laid down by section 3(1) of the Artificial Procreation Act is in conformity with Article 14 read in conjunction with Article 8.

The field of artificial procreation is subject to a particularly dynamic development both in science and in the development of a legal framework for its medical application. It is for this reason particularly difficult to obtain a sound basis for assessing the adequacy and appropriateness of legislative measures which might show their consequences only after a considerable length of time. It is therefore understandable that the States find it necessary to act with particular caution in the field of artificial procreation.

The Austrian legislature has not completely ruled out artificial procreation allowing the use of homologous techniques of procreation. According to the findings of the Constitutional Court in its decision of 14 October 1999, the Austrian legislator was guided by the idea that medically assisted procreation should take place similarly to natural procreation, in particular that the basic principle of civil law “ mater semper certa est, pater est quem nuptiae demonstrant ” should be maintained by avoiding the possibility that two persons could claim to be the biological mother of one and the same child and to avoid disputes between a biological and a genetic mother in the wider sense. By doing so the legislature 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 possibilities of modern reproductive medicine, raising issues of a morally and ethically sensitive nature.

The Austrian legislator has also taken specific safeguards and precautions under the Artificial Procreation Act, namely to reserve the use of artificial procreation techniques to specialised medical doctors, who have particular knowledge and experience in this field and are themselves bound by the ethical rules of their profession and to prohibit remuneration of ova and sperm donation by law. These measures are intended to prevent potential risks of eugenic selection and their abuse and to prevent the risk of exploitation of women in vulnerable situations as ova donors and one could also consider that the Austrian legislator might devise and adopt further measures or safeguards for reducing the risk attached to ova donation as described by the Government. The Government also argued that there was the risk of creating unusual relationships in which the social circumstances

deviated from the biological ones, but unusual family relations in a broad sense, which do not follow the typical parent-child relationship based on a direct biological link are not unfamiliar to the legal orders of the Contracting States. The institution of adoption had been created over the time to give a satisfactory legal framework to such relations, which is known in all the member states. Thus, a legal framework regulating satisfactorily the problems arising from ova donation could also have been adopted. However, one cannot overlook that the splitting of motherhood between a genetic mother and one carrying out the child significantly differs from relations based on adoption and has added a new quality to this problem.

The Austrian legislator could have devised a different legal framework for regulating artificial procreation allowing ova donation, which would be in accordance with its stated intentions. It notes in this regard that this latter solution has been adopted in a number of Member States of the Council of Europe (see § 33 above). However, in my view the central question is not whether a different solution might have been found by the legislature which would arguably have struck a fairer balance, but whether, in striking the balance at the point at which it did, the Austrian legislator exceeded the margin of appreciation afforded to it under Article 14 of the Convention . In determining this question, it is of quite some importance that, while, as noted above, there is no international consensus as to the point at which consent to the use of genetic material may be withdrawn, Austria is by no means alone among the Member States in prohibiting ova donation for the purpose of artificial procreation.

In this respect I would emphasize that the only instruments at European level dealing with the subject matter of ova donation for artificial procreation are the principles adopted by the ad hoc committee of experts on progress in the biomedical sciences of 1989. Principle 11 states that, i n principle in vitro fertilisation shall be effected using gametes of the members of the couple (see § 36 above). The Convention on Human Rights and Biomedicine of 1997 and the Additional Protocol of 2002 to this Convention are silent on this matter (see §§ 37-38 above). The prohibition of ova donation under the Artificial Procreation Act is in accordance with the above-mentioned principle.

Thus, in adopting the clear and principled rule of Section 3 of the Artificial Procreation Act whereby ova donation for purposes of artificial procreation was prohibited without exception, the Austrian legislator did not exceed the wide margin of appreciation afforded to it under Article 14 of the Convention.

DISSENTING OPINION OF JUDGE JEBENS

I respectfully disagree with the majority that there has been a violation of Article 14 of the Convention read in conjunction with Article 8 as regards any of the four applicants. Neither do I find that there has been a violation of Article 8 read alone. I discuss firstly the question concerning Article 8, taken alone.

1. There is in my opinion no doubt that the decision of spouses or a cohabiting couple to conceive a child falls within the ambit of Article 8, regardless of whether that can only be fulfilled by the use of medically assisted procreation techniques. However, artificial procreation raises difficult questions, notably not because of the use of medical assistance in itself, but because it may sometimes collide with deep-rooted ethical standards and because it may create the risk of unwanted consequences. That is the situation in this case, and it is for such reasons that the Austrian legislators have decided to prohibit the use of certain procreation methods.

The Austrian Artificial Procreation Act regulates the use of artificial methods for conceiving a child by permitting the use of known medical techniques, but prohibiting the use of ova or sperm from others than the couple itself for in vitro fertilisation. This reflects the purpose of the Act, which is to assist married and cohabiting couples who are unable to conceive a child by natural means, while at the same time preventing unwanted results, such as the creation of unusual family relations, commercialisation and selective reproduction and exploitation of poor women. In addition to such concrete reasons the legislator took into account the actual state of consensus in the Austrian society. Thus, the prohibition of the use of donor material was based not only on the possibilities of modern reproductive medicine, but also on the unease within the population on a morally and ethically sensitive issue.

I find it clear that the above reasons fall within the limits of Article 8 § 2 of the Convention, in that they are covered partly by “the protection of health and morals” and partly by “the protection of the rights and freedoms of others”. As to the question of whether the prohibition was proportionate to the aims it pursued, it is of importance that it prevents the applicants from their only possibility to biologically have children of their own. However, other, less restrictive, but still effective means do not seem to have been practically feasable. Furthermore, it must be taken into account that though Austria is in a minority among the European States, there is no European consensus with respect to artificial procreation with the use of donor material. Because of this, and the fact that the case concerns a very sensitive issue, the State should in my opinion be afforded a wide margin of appreciation (see Evans v. the United Kingdom [GC], no. 6339/05, § 77 , ECHR 2007 ‑ IV ) . Bearing in mind that the Austrian legislators have weighed the competing interests carefully and concluded with a reasonable solution, which to a very large extent opens up for artificial procreation, I do not think it is for the Court to interfere.

2. The applicants also rely on Article 14, read in conjunction with Article 8. Since I have concluded above that Article 8 is applicable alone, I also find Article 14 to be applicable, in conjunction with Article 8.

It follows from the Court ’ s case-law that a treatment is discriminatory, within the meaning of Article 14, if it has no objective and reasonable justification. However, an issue can only arise under Article 14 if the different treatment refers to situations which are relevantly similar (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ ... ). Even if that is the case, the Contracting States have a certain margin of appreciation when assessing whether and to what extent a different treatment is justified, ( Stec and Others v. the United Kingdom [GC], no. 65731/01, § § 51-52 , ECHR 2006 ‑ VI , Burden v. the United Kingdom [GC], no. 13378/05, § 60 , ECHR 2008 ‑ ...) .

Turning to the facts of the case, I note firstly that all the four applicants are treated differently from couples who are able to make use of the medical techniques allowed under the Artificial Procreation Act, namely those who produce ova and sperm, and who therefore do not need a donor. This is a difference in treatment between persons whose position is similar because they all need medical assistance in order to conceive a child, but different with respect to the method to be applied. More important is the fact that this difference refers to the very essence of the prohibition in the Austrian legislation. Bearing in mind that the States have a certain margin of appreciation, and that the prohibition is based on reasons which are in my mind acceptable, I am not able to conclude that there has been a violation in respect of the difference in treatment discussed above.

The first and second applicant, who need sperm donation in order to fulfil their wish for a child, further complain that they are discriminated against, because the Artificial Procreation Act prohibits the use of donor sperm for in vitro fertilisation, but allows the use of donor sperm for artificial insemination. I find these applicants to be in a similar position as couples who can utilise the insemination method, in that both groups need sperm donation. The reason for the difference in treatment is partly historical, in that the insemination technique has been in use for many years, and partly practical, because insemination is so easily performed that a prohibition could not be effectively controlled. Referring again to the States ’ margin in such matters, I am convinced by the fact that the Austrian legislators have not by the above exception permitted sperm donation as such, but accepted the realities and avoided legislation which would be impractical. In such circumstances it would also in my opinion be very unfortunate to restrict the possibilities of one group of couples from obtaining assistance, in order not to discriminate against another.