SEPARATE OPINION OF JUDGE DE GAETANO

1. I voted with the majority in this case since I believe that the facts do not disclose a violation of Article 8 of the Convention, or indeed of Article 14 read in conjunction with Article 8. Nevertheless, I have serious misgivings about some of the implied reasoning in the majority judgment.

2. Human dignity – and the underlying notion of the inherent value of human life – is at the very basis of the Convention as a whole. It may, of course, engage directly and immediately some Articles more than others. One such provision is Article 8. The issue, adverted to in paragraphs 85 et seq. of the judgment, of whether the instant case was to be examined as one of “interference with the applicants’ right to respect for their private and family lives ... or a failure by the State to fulfil a positive obligation in that respect” requires first an acknowledgment of the proper parameters of Article 8. While there is no doubt that a couple’s decision to conceive a child is a decision which pertains to the private and family life of that couple (and, in the context of Article 12, to the couple’s right to found a family), neither Article 8 nor Article 12 can be construed as granting a right to conceive a child at any cost . The “desire” for a child cannot, to my mind, become an absolute goal which overrides the dignity of every human life.

3. In Dickson v. the United Kingdom ([GC], no. 44362/04, ECHR 2007 ‑ V), referred to in paragraph 81 of the judgment, this Court held, in effect, that procreation detached from the conjugal act fell within the ambit of Article 8. To my mind, that decision did not advance human dignity but merely played second fiddle to advances in medical science. Human procreation, instead of being a personal act between a man and a woman, was reduced to a medical or laboratory technique.

4. The present judgment suggests (see paragraph 106) that a “European consensus” on the subject matter under examination is an important consideration for determining whether or not there has been a violation of the Convention (in this case of Article 8). Again, this suggestion deflects attention from the necessity of asking whether a particular act or omission or limitation enhances or detracts from human dignity (apart from the fact that history teaches that “European consensus” has in the past led to acts of gross injustice both in Europe and beyond). Similarly, whether or not the Austrian Parliament has undertaken to examine thoroughly “the rules governing artificial procreation, taking into account the dynamic developments in science and society” (see paragraph 117) is neither here nor there.

5. The issue of artificial procreation (as distinguished from medically assisted natural procreation) raises, of course, other issues which are beyond the scope of the present judgment, such as the freezing and destruction of human embryos.

6. Irrespective of the advances in medicine and other sciences, the recognition of the value and dignity of every person may require the prohibition of certain acts in order to bear witness to the inalienable value and intrinsic dignity of every human being. Such a prohibition – like the prohibitions against racism, unjust discrimination and the marginalisation of the ill and the disabled – is not a denial of fundamental human rights but a positive acknowledgment and advancement of the same.

JOINT DISSENTING OPINION OF JUDGES TULKENS, HIRVELÄ, LAZAROVA TRAJKOVSKA AND TSOTSORIA

(Translation)

1. Regarding this particularly sensitive and delicate question of medically assisted procreation (MAP), we do not share the conclusion reached by the majority that there has not been a violation of Article 8 of the Convention in respect of the four applicants.

2. In the present case, the first couple were not allowed to use donor ova and the second couple were not allowed to use donor sperm, in accordance with the Artificial Procreation Act of 1992 which provides that only gametes from spouses (or from persons living in a marital relationship) can be used, thus prohibiting MAP with a third-party donor.

3. It is important to note at the outset, however, that the Grand Chamber, like the Chamber, confirms and extends the applicability of Article 8 of the Convention to the present situation. Indeed, since the Grand Chamber judgment in Evans v. the United Kingdom of 10 April 2007 ([GC], no. 6339/05, ECHR 2007 ‑ I) our Court has accepted that the concept of private life, within the meaning of Article 8 of the Convention, covers the right to respect for the decision to have or not to have a child (ibid., § 71). Moreover, in the Grand Chamber judgment in Dickson v. the United Kingdom of 4 December 2007 ([GC], no. 44362/04, ECHR 2007 ‑ V), which concerned the possibility of artificial insemination facilities, the Court concluded that Article 8 was applicable on the ground that the procreation technique in question concerned the private and family life of the persons concerned, specifying that that notion incorporated the right to respect for their decision to become genetic parents (ibid., § 66). In the instant case, the Court states that “the right of a couple to conceive a child and to make use of medically assisted procreation for that purpose is also protected by Article 8, as such a choice is an expression of private and family life” (see paragraph 82 of the judgment). That acknowledgment is all the more important in that, unlike the Chamber, the Grand Chamber subsequently limits its examination to Article 8 taken alone, considering that the substance of the applicants’ complaints falls within that Article. Article 8 of the Convention thus appears to play an enhanced role now regarding questions related to procreation and reproduction.

4. In an area undergoing profound changes, both from a scientific and medical point of view and in social and ethical terms, one feature of the present case is the time factor . The decision of the Austrian Constitutional Court dismissing the application lodged by the applicants was adopted on 14 October 1999 . In that decision, the court observed itself that “[t]he choices the legislature [of 1992] had made reflected the then current state of medical science and the consensus in society. It did not mean, however, that these criteria were not subject to developments which the legislature would have to take into account in the future” (see paragraph 22 of the judgment). The application was lodged with our Court on 8 May 2000 and the Chamber judgment was adopted on 1 April 2010 . In these particular circumstances, we find it artificial for the Court to confine its examination to the situation as it existed when the Constitutional Court gave judgment in 1999 and in the context at the time, thus deliberately depriving a Grand Chamber judgment, delivered at the end of 2011, of any real substance. Admittedly, the judgment takes care to specify that “the Court is not prevented from having regard to subsequent developments in making its assessment” (see paragraph 84 of the judgment), but that specification remains a dead letter in actual fact.

5. We find this approach, for which there is no decisive support in the Court’s case-law – in fact quite the contrary (see, inter alia , YaÅŸa v. Turkey , 2 September 1998, § 94, Reports of Judgments and Decisions 1998 ‑ VI, and Maslov v. Austria [GC], no. 1638/03, §§ 91 and 92, ECHR 2008) – all the more problematical in that the main thrust of the Grand Chamber’s reasoning is based on the European consensus regarding gamete donation (ova and sperm) which, as we well know, has evolved considerably (see paragraphs 35 et seq. of the judgment). Moreover, the judgment clearly acknowledges this point: “[f]rom the material at the Court’s disposal, it appears that since the Constitutional Court’s decision in the present case many developments in medical science have taken place to which a number of Contracting States have responded in their legislation. Such changes might therefore have repercussions on the Court’s assessment of the facts” (see paragraph 84 of the judgment). They did not subsequently have any repercussions, though.

6. More specifically, and this is a weighty factor in our view, the majority expressly notes that the Austrian Parliament has still not, to date, undertaken a thorough assessment of the rules governing artificial procreation taking into account the dynamic developments in science and society in this area, despite the fact that the Constitutional Court – back in 1999 – had said that the criteria were subject to developments which the legislature would have to take into account (see paragraph 117 of the judgment). Ten years have passed, however, and this has still not been followed up in any way. Nevertheless, the Grand Chamber considers that the legislature has complied with the principle of proportionality under Article 8 § 2 of the Convention and confines itself to stating that the area “needs to be kept under review by the Contracting States” (see paragraph 118 of the judgment).

7. Even if it were acceptable in 2011 to have regard exclusively to the situation existing in 1999, it would still be necessary for the European consensus as it existed at the time to be carefully ascertained in order to determine the breadth of the margin of appreciation because “[w]here a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted” (see paragraph 94 of the judgment). Accordingly, for example in the Connors v. the United Kingdom judgment (no. 66746/01, 27 May 2004), the Court reiterated that the margin “will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights” (ibid., § 82), which is clearly the case here.

8. Even according to the comparative study on medically assisted procreation undertaken by the Council of Europe in thirty-nine countries in 1998, ovum donation was prohibited in only eight countries at the time and sperm donation in five countries. Despite that, the Court considers that “[the] emerging consensus is not, however, based on settled and long-standing principles established in the law of the member States but rather reflects a stage of development within a particularly dynamic field of law and does not decisively narrow the margin of appreciation of the State” (see paragraph 96 of the judgment). The Court thus takes the unprecedented step of conferring a new dimension on the European consensus and applies a particularly low threshold to it, thus potentially extending the States’ margin of appreciation beyond limits. The current climate is probably conducive to such a backward step. The differences in the Court’s approach to the determinative value of the European consensus and a somewhat lax approach to the objective indicia used to determine consensus [1] are pushed to their limit here, engendering great legal uncertainty.

9. It is significant that in a report of a meeting on “Medical, ethical and social aspects of assisted reproduction” organised by the World Health Organization as far back as 2001 , the authors point out that “[i]t is commonly accepted that infertility affects more than 80 million people worldwide. In general, one in ten couples experiences primary or secondary infertility” and “it is a central issue in the lives of the individuals who suffer from it. It is a source of social and psychological suffering for both men and women and can place great pressures on the relationship within the couple” [2] . Today, “society has to cope with new challenges brought to the forefront by [a] technological revolution [in the field of assisted reproduction] and its social implications” [3] . In this respect, it seems to us important to recall Articles 12 § 1 and 15 § 1 (b) of the International Covenant on Economic, Social and Cultural Rights (1966) which recognises the right of everyone to enjoy the benefits of scientific progress and its applications, and the right of everyone to enjoy the highest standard of physical and mental health. Ultimately, what is at stake here is not a question of choice between different techniques but, more fundamentally, a restriction on access to heterologous in vitro fertilisation constituting denial of access to available treatment.

10. Despite the fact that the data at the relevant time mainly support the opposite approach, and without taking into consideration the developments that have taken place in the meantime, the Grand Chamber unhesitatingly affirms that there is not yet “clear common ground among the member States” and that the margin of appreciation to be afforded to the respondent State “must be a wide one”, allowing it to reconcile social realities with its positions of principle. That reasoning implies that these factors must now take precedence over the European consensus, which is a dangerous departure from the Court’s case-law considering that one of the Court’s tasks is precisely to contribute to harmonising across Europe the rights guaranteed by the Convention [4] .

11. Together with the European consensus, the margin of appreciation is thus the other pillar of the Grand Chamber’s reasoning. This is sometimes described as wide or broad (see paragraph 97 of the judgment), and is sometimes referred to without any qualifying adjective (see paragraphs 106 and 115 of the judgment), thereby indicating a certain amount of hesitation as to the correct weight to be given to that concept and to the seriousness of the limitation in question. The result is that the Court’s position is unclear and uncertain, or even opaque. While acknowledging that the legislature could have provided acceptable, perhaps more balanced, legal solutions to the difficulties associated with ovum and sperm donation, the Grand Chamber confines itself to examining whether, by adopting the impugned solution, it exceeded its margin of appreciation (see paragraph 106 of the judgment). In our opinion, this is not the issue here. On the one hand, where the States have authorised MAP, the Court has to verify whether the benefit thereof is granted in accordance with their obligations under the Convention and whether they have chosen the means that impinge the least on rights and freedoms. The margin of appreciation goes hand in hand with European supervision. On the other hand, in a case as sensitive as this one, the Court should not use the margin of appreciation as a “pragmatic substitute for a thought-out approach to the problem of proper scope of review” [5] . Ultimately, through the combined effect of the European consensus and the margin of appreciation, the Court has chosen a minimum – or even minimalist – approach that is hardly likely to enlighten the national courts.

12. One of the arguments advanced by the Government and accepted by the majority is particularly problematical in our view, namely, that “there is no prohibition under Austrian law on going abroad to seek treatment of infertility that uses artificial procreation techniques not allowed in Austria and that in the event of a successful treatment the Civil Code contains clear rules on paternity and maternity that respect the wishes of the parents (see paragraph 114 of the judgment) [6] .

13. In our view, the argument that couples can go abroad (without taking into account the potential practical difficulties or the costs that may be involved) does not address the real question, which is that of interference with the applicants’ private life as a result of the absolute prohibition in Austria; it totally fails to satisfy the requirements of the Convention regarding the applicants’ right to compliance with Article 8. Furthermore, by endorsing the Government’s reasoning according to which, in the event that treatment abroad is successful, the paternity and maternity of the child will be governed by the Civil Code in accordance with the parents’ wishes, the Grand Chamber considerably weakens the strength of the arguments based on “the unease existing among large sections of society as to the role and possibilities of modern reproductive medicine”, particularly concerning the creation of atypical family relations (see paragraph 113 of the judgment). Lastly, if the concerns for the child’s best interests – allegedly endangered by recourse to prohibited means of reproduction – disappear as a result of crossing the border, the same is true of the concerns relating to the mother’s health referred to several times by the respondent Government to justify the prohibition.

14. For all of the foregoing reasons, we conclude that there has, in this case, been a violation of Article 8 of the Convention in respect of the four applicants.

[1] . “The Role of Consensus in the System of the European Convention on Human Rights”, Dialogue between Judges , European Court of Human Rights, Council of Europe, 2008.

[2] . E. Vayena et al. (eds.), Current Practices and Controversies in Assisted Reproduction , Geneva, World Health Organization, 2002, p. XIII.

[3] . M.F. Fathalla, “Current Challenges in Assisted Reproduction”, in E. Vayena et al . (eds.), Current Practices and Controversies in Assisted Reproduction , op. cit., p. 20.

[4] . C.L. Rozakis, “The European Judge as Comparatist”, Tul. L. Rev. , vol. 80, no. 1, 2005, p. 272.

[5] . Joint dissenting opinion of Judges Türmen, Tsatsa-Nikolovska, Spielmann and Ziemele annexed to the Grand Chamber judgment in Evans v. the United Kingdom , cited above, paragraph 12.

[6] . See, on this point, R.F. Storrow, “The Pluralism Problem in Cross-Border Reproductive Care”, Human Reproduction , vol. 25, no. 12, 2010, pp. 2939 et seq.