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FIRST
SECTION
CASE OF
S. H. AND OTHERS v. AUSTRIA
(Application
no. 57813/00)
JUDGMENT
STRASBOURG
1 April
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of S. H. and Others v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Sverre
Erik Jebens,
Giorgio
Malinverni,
judges,
and
André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 11 March 2010,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 57813/00) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by four Austrian nationals, Ms S. H., Mr D.H.,
Ms. H. E.-G. and Mr M.G. (“the applicants”), on
8 May 2000. The President of the Chamber acceded to the applicants'
request not to have their names disclosed (Rule 47 § 3 of the
Rules of Court).
- The
applicants were represented by Mr H.F. Kinz and Mr W.L. Weh, both
lawyers practising in Bregenz. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador
F. Trauttmansdorff, Head of the International Law Department at
the Federal Ministry of Foreign Affairs.
- The
applicants alleged in particular that the provisions of the Austrian
Artificial Procreation Act prohibiting the use of ova from donors and
sperm from donors for in vitro fertilisation, the only medical
techniques by which they could successfully conceive children,
violated their rights under Article 8 of the Convention read
alone and in conjunction with Article 14.
- By
a decision of 15 November 2007 the Court declared the applications
partly admissible.
-
Third-party comments were received from the German Government, which
had exercised its right to intervene (Article 36 § 1 of the
Convention and Rule 44 § 1 (b)).
- A
hearing on the merits of the application took place in public in the
Human Rights Building, Strasbourg, on 28 February 2008 (Rule 59 §
3).
There appeared before the Court:
(a) for the Government
Ms B. ohms, Deputy
Agent,
Ms B. grosse,
Mr M. stormann,
Ms I. hager-ruhs,
Advisers;
(b) for the applicants
Mr H. kinz,
Mr W.L.
weh, Counsels.
The
Court heard addresses by Mr Weh, Mr Kinz and Ms Ohms.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were born in 1966, 1962, 1971 and 1971
respectively and live in L. and R.
- The
first applicant is married to the second applicant and the third
applicant to the fourth applicant.
- The
first applicant suffers from fallopian-tube-related infertility
(eileiterbedingter Sterilität). The second applicant, her
husband, is also infertile.
- The
third applicant suffers from agonadism (Gonadendysgenesie),
which means that she does not produce ova at all. Thus she is
completely infertile but has a fully developed uterus. The fourth
applicant, her husband, in contrast to the second applicant, can
produce sperm fit for procreation.
- On
4 May 1998 the first and third applicants lodged an application
(Individualantrag) with the Constitutional Court
(Verfassungsgerichtshof) for a review of the constitutionality
of section 3(1) and section 3(2) of the Artificial Procreation Act
(Fortpflanzungsmedizingesetz - see Relevant domestic law
below).
- The
applicants argued before the Constitutional Court that they were
directly affected by the above provisions. The first applicant
submitted that she could not conceive a child by natural means; thus
the only way open to her and her husband would be in vitro
fertilisation using sperm from a donor. That medical technique was,
however, ruled out by section 3(1) and section 3(2) of the Artificial
Procreation Act. The third applicant submitted that she was also
infertile. Suffering from agonadism, she did not produce ova at all.
Thus, the only way open to her of conceiving a child was to resort to
a medical technique of artificial procreation referred to as
heterologous embryotransfer, which would entail implanting into her
uterus an embryo conceived with ova from a donor and sperm from the
fourth applicant. However, that method was not allowed under the
Artificial Procreation Act.
- The
first and third applicants argued before the Constitutional Court
that the impossibility of using the above-mentioned medical
techniques for medically assisted conception was a breach of their
rights under Article 8 of the Convention. They also relied on Article
12 of the Convention and on Article 7 of the Federal
Constitution, which guarantees equal treatment.
- On
4 October 1999 the Constitutional Court held a public hearing in
which the first applicant, assisted by counsel, participated.
- On
14 October 1999 the Constitutional Court decided on the first and
third applicants' request. The Constitutional Court found that their
request was partly admissible in so far as the wording concerned
their specific case. In this respect, it found that the provisions of
section 3 of the Artificial Procreation Act, which prohibited the use
of certain procreation techniques, was directly applicable to the
applicants' case without it being necessary for a decision by a court
or administrative authority to be taken.
- As
regards the merits of their complaints the Constitutional Court
considered that Article 8 was applicable in the applicants' case.
Although no case-law of the European Court of Human Rights existed on
the matter, it was evident, in the Constitutional Court's view, that
the decision of spouses or a cohabiting couple to conceive a child
and make use of medically assisted procreation techniques to that end
fell within the sphere of protection under Article 8.
- The
impugned provisions of the Artificial Procreation Act interfered with
the exercise of this freedom in so far as they limited the scope of
permitted medical techniques of artificial procreation. As for the
justification of such an interference, the Constitutional Court
observed that the legislature, when enacting the Artificial
Procreation Act, had tried to find a solution by balancing the
conflicting interests of human dignity, the right to procreation and
the well-being of children. Thus, it had enacted as leading features
of the legislation that, in principle, only homologous methods –
such as using ova and sperm from the spouses or the cohabiting couple
itself – would be allowed and only methods which did not
involve a particularly sophisticated technique and were not too far
removed from natural means of conception. The aim was to avoid the
forming of unusual personal relations such as a child having more
than one biological mother (a genetic mother and one carrying the
child) and to avoid the risk of exploitation of women.
- The
use of in vitro fertilisation as opposed to natural
procreation raised serious issues as to the well-being of children
thus conceived, their health and their rights, and also touched upon
the ethical and moral values of society and entailed the risk of
commercialisation and selective reproduction (Zuchtauswahl).
- Applying
the principle of proportionality under Article 8 § 2, however,
such concerns could not lead to a total ban on all possible medically
assisted procreation techniques, as the extent to which public
interests were concerned depended to a large extent on whether a
heterologous or homologous technique was used.
- In
the Constitutional Court's view, the legislator had not overstepped
the margin of appreciation afforded to member States when it
established the permissibility of homologous methods as a rule and
insemination using donor sperm as an exception. This compromise
reflected the 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 legislator would have to take into
account in the future.
- The
legislator had also not neglected the interests of men and women who
had to avail themselves of artificial procreation techniques. Besides
strictly homologous techniques it had accepted insemination using
sperm from donors. Such a technique had been known and used for a
long time and would not bring about unusual family relationships.
Further, the use of these techniques was not restricted to married
couples but also included cohabiting couples. In so far, however, as
homologous techniques were not sufficient for the conception of a
child the interests of the individuals concerned ran counter to the
above-mentioned public interest.
- The
Constitutional Court also found that for the legislator to prohibit
heterologous techniques, while accepting as lawful only homologous
techniques, was in accordance with the prohibition of discrimination
as contained in the principle of equality. The difference in
treatment between the two techniques was justified because, as
pointed out above, the same objections could not be raised against
the homologous method as against the heterologous one. As a
consequence the legislator was not bound to apply strictly identical
regulations to both. Also, the fact that insemination with donor
sperm was allowed while ova donation was not did not raise a
discrimination issue because again, as pointed out above, there was
no risk of creating unusual relationships which might adversely
affect the well-being of a future child as there was with
heterologous insemination.
- Since
the impugned provisions of the Artificial Procreation Act were in
line with Article 8 of the Convention and the principle of equality
under the Federal Constitution, there had also been no breach of
Article 12 of the Convention.
- This
decision was served on the first and third applicants' lawyer on
8 November 1999.
II. RELEVANT NON-CONVENTION MATERIAL
A. Domestic law: the Artificial Procreation Act
- The
Artificial Procreation Act (Fortpflanzungsmedizingesetz,
Federal Law Gazette 275/1992) regulates the use of medical techniques
for inducing conception of a child by means other than copulation
(section 1(1)).
- These
methods comprise: (i) introduction of sperm into the reproductive
organs of a woman, (ii) unification of ovum and sperm outside the
body of a woman, (iii) introduction of viable cells into the uterus
or fallopian tube of a woman and (iv) introduction of ovum cells or
ovum cells with sperm into the uterus or fallopian tube of a woman
(section 1(2)).
- Medically
assisted procreation is allowed only within a marriage or a
relationship similar to marriage, and may only be carried out if
every other possible and reasonable treatment aimed at inducing
pregnancy through intercourse has failed or has no reasonable chance
of success (section 2).
- Under
section 3(1), only ova and sperm from spouses or from persons living
in a relationship similar to marriage (Lebensgefährten)
may be used for the purpose of medically assisted procreation. In
exceptional circumstances, sperm from a third person may be used for
artificial insemination when introducing sperm into the reproductive
organs of a woman (section 3(2)). In all other circumstances, and in
particular for the purpose of in vitro fertilisation, the use
of sperm by donors is prohibited.
- Under
section 3(3), ova or viable cells may only be used for the woman from
whom they originate. Thus ova donation is always prohibited.
- The
further provisions of the Artificial Procreation Act stipulate, inter
alia, that medically assisted procreation may only be carried out
by specialised physicians and in specially equipped hospitals or
surgeries (section 4) and with the express and written consent of the
spouses or cohabiting persons (section 8).
- In
1999 the Artificial Procreation Act was supplemented by a Federal Act
Establishing a Fund for Financing In-vitro Fertilisation Treatment
(Bundesgesetz mit dem ein Fonds zur Finanzierung der
In-vitro-Fertilisiation eingerichtet wird – Federal Law
Gazette Part I No. 180/1999) in order to subsidise in–vitro
fertilisation treatment allowed under the Artificial Procreation Act.
B. The position in other countries
- On the basis of the material available to the Court,
including the document “Medically-assisted Procreation and the
Protection of the Human Embryo Study on the Solution in 39 States”
(Council of Europe, 1998) and the replies by the member States of the
Council of Europe to the Steering Committee on Bioethics'
“Questionnaire on Access to Medically-assisted Procreation”
(Council of Europe, 2005), it would appear that IVF treatment is
regulated by primary or secondary legislation in Austria, Azerbaijan,
Bulgaria, Croatia, Denmark, Estonia, France, Georgia, Germany,
Greece, Hungary, Iceland, Italy, Latvia, the Netherlands, Norway, the
Russian Federation, Slovenia, Spain, Sweden, Switzerland, Turkey,
Ukraine and the United Kingdom. In Belgium, the Czech Republic,
Finland, Ireland, Malta, Lithuania, Poland, Serbia and Slovakia such
treatment is governed by clinical practice, professional guidelines,
royal or administrative decree or general constitutional principles.
- The
study in particular sets out the position of domestic law as regards
seven different artificial procreation techniques: artificial
insemination within a couple, in vitro fertilisation within a
couple, artificial insemination by sperm donor, ova donation, ova and
sperm donation, embryo donation and
intracytoplasmic sperm injection (an in
vitro
fertilization
procedure in which a single sperm
is injected directly into an egg).
- As
far as can be seen, sperm donation is currently prohibited only in
three countries: Italy, Lithuania and Turkey, which all ban
heterologous assisted fertilisation as a whole. Countries allowing
sperm donation do not generally distinguish in their regulations
between the use of sperm for artificial insemination and for in
vitro fertilisation. As regards the donation of ova, it is
prohibited in Croatia, Germany, Norway and Switzerland, in addition
to the three countries mentioned above. Since Germany in practice
allows donation of sperm only for non-in vitro fertilisation,
the legal situation is quite similar to the situation in Austria.
- In
a number of countries, such as Cyprus, Luxembourg, Malta, Finland,
Poland, Portugal and Romania, where the matter is not regulated, the
donation of both sperm and ova is used in practice.
- A
comparison between the Council of Europe study of 1998 and a survey
conducted by the International Federation of Fertility Societies
of 2007 shows that in the field of medically assisted
procreation legal provisions are developing quickly. In Denmark,
France and Sweden sperm and ova donation, which was previously
prohibited, is now allowed since the entry into force of new legal
provisions in 2006, 2004 and 2006 respectively. In Norway sperm
donation for in vitro fertilisation has been allowed since
2003, but not ova donation.
C. Council of Europe Instruments
- Principle
11 of the principles adopted by the ad hoc committee of
experts on progress in the biomedical sciences, the expert body
within the Council of Europe which preceded the present Steering
Committee on Bioethics (CAHBI, 1989), states:
“1. In principle, in vitro fertilisation
shall be effected using gametes of the members of the couple. The
same rule shall apply to any other procedure that involves ova or in
vitro or embryos in vitro. However, in exceptional cases defined
by the member states, the use of gametes of donors may be permitted.
”
- The
Convention on Human Rights and Biomedicine of 1997 does not deal with
the question of donation of gametes, but forbids to use a medically
assisted reproduction technique to choose the sex of a child. Its
Article 14 reads as follows:
“The use of techniques of medically assisted
procreation shall not be allowed for the purpose of choosing a future
child's sex, except where serious hereditary sex-related disease is
to be avoided.”
- The
Additional Protocol to the above Convention, on Transplantation of
Organs and Tissues of Human Origin, of 2002, which promotes donation
of organs, expressly excludes from its scope reproductive organs and
tissues.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ
IN CONJUNCTION WITH ARTICLE 8
- The
applicants complained that the prohibition of heterologous artificial
procreation techniques for in vitro fertilisation laid down by
section 3(1) and section 3(2) of the Artificial Procreation Act
had violated their rights under Article 14 read in conjunction with
Article 8.
- These
provisions, in so far as relevant, read as follows:
Article 14: Prohibition of discrimination
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
Article 8: Right to respect for private and family
life
“1. Everyone has the right to respect
for his private and family life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Submissions by the parties
1. The applicants
- The
applicants submitted that Article 8 of the Convention was applicable
and therefore also Article 14. Because of the special importance of
the right to found a family and the right to procreation, the
Contracting States enjoyed no margin of appreciation at all in
regulating these issues. The decisions to be taken by couples wishing
to make use of artificial procreation concerned their most intimate
sphere and therefore the legislature should show particular restraint
in regulating these matters.
- All
the arguments raised by the Government in defence of the impugned
legislation were directed against artificial procreation in general
and were therefore not persuasive when it came to accepting some
procreation techniques while rejecting others. The risk of
exploitation of female donors, to which the Government referred, was
not relevant in circumstances such as those in the present case. To
combat any potential abuse in the Austrian situation, it was enough
to forbid remunerated ova or sperm donation; such a prohibition
existed in Austria.
- The
system applied under the Artificial Procreation Act was incoherent
and illogical, since heterologous forms of medically assisted
procreation were not prohibited in general but exceptions were made
for sperm donation in relation to specific techniques. The reasons
for this difference in treatment were not persuasive. Furthermore, it
was not clear why the legislation in force allowed for artificial
insemination with donor sperm, while it categorically prohibited ova
donation. In particular the distinction made between insemination
with sperm from donors and in vitro fertilisation with donor
sperm was incomprehensible. Thus, the impugned legislation
constituted discrimination prohibited by Article 14.
2. The Government
- The
Government submitted that Article 14 complemented the other
substantive provisions of the Convention and its Protocols. Since the
applicability of Article 8 of the Convention was not disputed, and
they referred in this respect to the findings of the Austrian
Constitutional Court, Article 14, read in conjunction with those
provisions, applied as well.
- The
Government submitted further that, according to the Court's case-law,
a difference in treatment was discriminatory for the purpose of
Article 14 if it had no objective and reasonable justification,
that is, if it did not pursue a “legitimate aim” or if
there was not a reasonable relationship of proportionality between
the means employed and the aim sought to be realised. However,
Contracting States enjoyed a certain margin of appreciation in
assessing whether and to what extent differences in otherwise similar
situations justified different treatments in law. The prohibition of
in vitro fertilisation with sperm or ova from a donor was
objectively and reasonably justified. The prohibition which pursued
the legitimate aim of protecting the health and well-being of the
women and children concerned as well as safeguarding general ethics
and the moral values of society, was also proportionate.
- Even
though the right to respect for private life also comprised the right
to fulfil the wish for a child, it did not follow that the State was
under an obligation to permit indiscriminately all technically
feasible means of reproduction or even to provide such means. In
making use of the margin of appreciation afforded to them, the States
had to decide for themselves what balance should be struck between
the competing interests in the light of the specific social and
cultural needs and traditions of their countries. The Austrian
legislature had struck a fair balance, taking into account all the
interests concerned. Such a balance allowed for medically assisted
procreation while at the same time providing for certain limits where
the current stage of medical and social development did not yet
permit a legal authorisation of in vitro fertilisation with
the sperm or ova of third persons, as desired by the applicants.
Therefore the Artificial Procreation Act was characterised by the
intention to prevent negative repercussions and potential misuses and
to employ medical advances only for therapeutic purposes and not for
other objectives such as “selection” of children, as the
legislature could not and should not neglect the existing unease
among large sections of society about the role and possibilities of
modern reproductive medicine.
- After
thorough preparation the legislature had found an adequate solution
in a controversial area, taking into account human dignity, the
well-being of the child and the right to procreation. In vitro
fertilisation opened up far-reaching possibilities for a selective
choice of ova and sperm, which might finally lead to selective
reproduction (Zuchtauswahl). This raised essential questions
regarding the health of children thus conceived and born, touching
especially upon the general ethics and moral values of society.
- In
the discussion in Parliament it had been pointed out that ova
donation might lead to problematic developments such as exploitation
and humiliation of women, in particular of those from an economically
disadvantaged background. Pressure might be put on a female donor who
otherwise would not be in a position to afford an in vitro
fertilisation to fulfil her own wish for a child.
- In
vitro fertilisation also raised the question of unusual
relationships in which the social circumstances deviated from the
biological ones, namely, the division of motherhood into a biological
aspect and an aspect of “carrying the child” and perhaps
also a social aspect. Finally, one had also to take into account that
children had a legitimate interest in being informed about their
actual descent, which, with donated sperm and ova, would in most
cases be impossible. With the use of donated sperm and ova within the
framework of medically assisted procreation, the actual parentage of
a child was not revealed in the register of births, marriages and
deaths and the legal protective provisions governing adoptions were
ineffective in the case of medically assisted procreation. The
reasons for allowing artificial insemination, as set out in the
explanatory report to the Government's bill on the Artificial
Procreation Act, were that because it was such an easily applicable
procreation method, compared with others, it could not be monitored
effectively. Also, this technique had already been in use for a long
time. Thus, a prohibition of this simple technique would not have
been effective and consequently would not constitute a suitable means
of pursuing the objectives of the legislation effectively.
- The
Government therefore concluded that the prohibition of in vitro
fertilisation with sperm or ova from a donor was objectively and
reasonably justified. The prohibition, which pursued the legitimate
aim of protecting the health and well-being of the women and children
concerned as well as safeguarding general ethics and the moral values
of society, was also proportionate. Accordingly, the applicants had
not been discriminated against.
B. Third party submissions by the German Government
- The
German Government submitted that under section 1(1) of the German
Embryo Protection Act (Embryonenschutzgesetz) it was a
punishable offence to place inside a woman an egg not produced by
her.
- The
prohibition was supposed to protect the child's welfare by ensuring
the unambiguous identity of the mother. Biologically, only women were
capable of carrying a child to term. Splitting motherhood into a
genetic and a biological mother would result in two women having a
part in the creation of a child. This would be an absolute novelty in
nature and in the history of mankind. In legal, historical and
cultural terms, the unambiguousness of motherhood represented a
fundamental and basic social consensus and, for this reason alone,
was considered indispensable by German legislators. In addition, the
relationship with the mother was assumed to be important for the
child's discovery of identity. As a result, the child would have
extreme difficulties in coping with the fact that in biological terms
two women had a part in his or her existence. Split motherhood and
the resulting ambiguousness of the mother's identity might jeopardise
the development of the child's personality and lead to considerable
problems in his or her discovery of identity. It was therefore
contrary to the child's welfare.
- Another
danger was that the biological mother, being aware of the genetic
background, might hold the egg donor responsible for any illness or
handicap of the child and reject him or her. A conflict of interests
between the genetic and biological mother could unfold to the
detriment of the child. For the donor, making ova available was a
complicated and invasive procedure which might result in a physical
and psychological burden and a medical risk for the donor. Another
conflict which might arise and strain the genetic and biological
mothers' relationships with the child was that a donated egg might
result in the recipient getting pregnant while the donor herself
failed to get pregnant by means of in vitro fertilisation.
- For
the aforementioned reasons, split motherhood was considered to be a
serious threat to the welfare of the child which justified the
existing prohibitions under the Embryo Protection Act.
C. The Court's assessment
1. Applicability of Article 14 in conjunction with
Article 8
- The
Government accepted that Article 8 was applicable to the case and
consequently they did not dispute the applicability of Article 14 of
the Convention. In this respect they referred to the findings of the
Constitutional Court which, in its judgment of 14 October 1999, held
that the decision of spouses or a cohabiting couple to conceive a
child and to make use for that end of medically assisted procreation
techniques fell within the sphere of protection of Article 8.
- The
applicants agreed with the Government as to the applicability of
Article 14 read in conjunction with Article 8 of the Convention.
- The
Court reiterates that the notion of “private life” within
the meaning of Article 8 of the Convention is a broad concept which
encompasses, inter alia, the right to establish and develop
relationships with other human beings (see Niemietz v.
Germany, judgment of 16 December 1992, Series A
no. 251 B, p. 33, § 29), the right to “personal
development” (see Bensaid v. the United Kingdom,
no. 44599/98, § 47, ECHR 2001 I) or the right to
self-determination as such (see Pretty v. the United Kingdom,
no. 2346/02, § 61, ECHR 2002 III). It encompasses
elements such as names (see Burghartz v. Switzerland,
judgment of 22 February 1994, Series A no. 280 B,
p. 28, § 24), gender identification, sexual orientation and
sexual life, which fall within the personal sphere protected by
Article 8 (see, for example, Dudgeon v. the United Kingdom,
judgment of 22 October 1981, Series A no. 45, pp. 18-19,
§ 41, and Laskey, Jaggard and Brown v. the United
Kingdom, judgment of 19 February 1997, Reports of
Judgments and Decisions 1997-I, p. 131, § 36), and the right
to respect for the decisions both to have and not to have a child
(see Evans v. the United Kingdom [GC], no. 6339/05,
§ 71, ECHR 2007 IV).
- In
the case of Dickson v. the United Kingdom, which concerned the
refusal of facilities for artificial insemination to the applicants,
a prisoner and his wife, the Court found that Article 8 was
applicable in that the artificial insemination facilities at issue
concerned their private and family lives which notions incorporate
the right to respect for their decision to become genetic parents
(Dickson v. the United Kingdom [GC], no. 44362/04, §
66, ECHR 2007 XIII with further references).
- The
Court therefore considers that the right of a couple to conceive a
child and to make use of medically assisted procreation for that end
comes within the ambit of Article 8, as such a choice is clearly an
expression of private and family life. Article 8 of the Convention
therefore applies to the present case.
- With
regard to Article 14, which was relied on in the present case, the
Court reiterates that it only complements the other substantive
provisions of the Convention and the Protocols thereto. It has no
independent existence since it has effect solely in relation to “the
enjoyment of the rights and freedoms” safeguarded by those
provisions (see, among many other authorities, Sahin v.
Germany [GC], no. 30943/96, § 85, ECHR
2003 VIII). The application of Article 14 does not necessarily
presuppose the violation of one of the substantive rights protected
by the Convention. It is necessary but it is also sufficient for the
facts of the case to fall “within the ambit” of one or
more of the Articles of the Convention (see Petrovic v.
Austria, judgment of 27 March 1998, Reports 1998 II,
§ 22 and Burden v. United Kingdom [GC], no.
13378/05 §58, ECHR 2008-...).
- Since
the applicants complain that they are victims of a difference in
treatment which lacks objective and reasonable justification as
required by Article 14 of the Convention, that provision, taken
in conjunction with Article 8, is applicable.
2. Compliance with Article 14 in conjunction with
Article 8
- The
applicants claim to be in a similar or analogous position to other
couples who wish to avail themselves of medically assisted
procreation techniques but who, owing to their medical condition, do
not need ova donation or sperm donation for in vitro
fertilisation. The applicants therefore were subject to a difference
in treatment. Regard must be had to the aim behind that difference in
treatment and, if the aim was legitimate, to whether the different
treatment was justified.
- The
Court reiterates that, for the purposes of Article 14, a difference
in treatment is discriminatory if it has no objective and reasonable
justification, which means that it does not pursue a “legitimate
aim” or that there is no “reasonable proportionality
between the means employed and the aim sought to be realised”
(see, inter alia, Petrovic, cited above, § 30; and
Salgueiro da Silva Mouta v. Portugal, no. 33290/96, §
29..., ECHR 1999 IX). In that connection the Court observes
that the Convention is a living instrument, to be interpreted in the
light of present-day conditions (see, inter alia, Johnston
and Others v. Ireland, 18 December 1986, § 53, Series A
no. 112).
- The
Court reiterates further that Contracting States enjoy a margin of
appreciation in assessing whether and to what extent differences in
otherwise similar situations justify a different treatment (see Van
Raalte v. the Netherlands, 21 February 1997, § 39,
Reports of Judgments and Decisions 1997-I). The scope of this
margin will vary according to the circumstances, the subject matter
and the background (see Petrovic, cited above, § 38).
- The
applicants submitted that because of the special importance of the
right to found a family and the right to procreation, the Contracting
States enjoyed no margin of appreciation at all in regulating these
issues.
- In
the Government's view the Austrian legislator, in devising the
framework for artificial procreation and for deciding in that context
which procreation techniques were allowed, had a particularly wide
margin of appreciation which was a decisive element in assessing
whether a difference of treatment in otherwise similar situations
pursued a legitimate aim
- The
Court notes that in the field of medically assisted procreation there
is no uniform approach to this question among the State Parties to
the Convention (see Council of Europe, Medically Assisted Procreation
and the Protection of the Human Embryo – Comparative Study on
the Situation in 39 States, June 1998, CDBI/INF (98) 8).
Medically assisted procreation is regulated in detail in some
countries, to a certain extent in others and in further countries not
at all. If legislation exists in a country, there is a broad variety
of techniques which are allowed and forbidden. As far as can be seen,
the same situation as in Austria exists under German law. Donation of
sperm is prohibited in Italy, Lithuania and Turkey, while donation of
ova is prohibited in Croatia, Germany, Italy, Lithuania, Norway,
Switzerland and Turkey.
- Since
the use of IVF treatment gives rise to sensitive moral and ethical
issues against a background of fast-moving medical and scientific
developments, and since the questions raised by the case touch on
areas where there is no clear common ground amongst the Member
States, the Court considers that the margin of appreciation to be
afforded to the respondent State must be a wide one (see X,
Y and Z v. the United Kingdom, 22 April 1997, § 44,
Reports of Judgments and Decisions 1997 II). The State's
wide margin in principle extends both to its decision to intervene in
the area and, once having intervened, to the detailed rules it lays
down in order to achieve a balance between the competing public and
private interests (see Evans, cited above § 75).
However, the differences in the approaches adopted by the Contracting
States do not, as such, make any solution reached by a legislature
acceptable. It does not absolve the Court from carefully examining
the arguments discussed in the legislative process and from examining
whether the arguments advanced by the Government for justifying the
difference of treatment in issue are relevant and sufficient. In
doing so the Court finds that the situation of the first and second
applicants and that of the third and fourth applicants have to be
examined separately.
a. The Third and Fourth Applicants (ova donation)
- The
third applicant is completely infertile and does not produce ova at
all while her husband, the fourth applicant, can produce sperm fit
for procreation. It is not in dispute that owing to their medical
conditions only in vitro fertilisation with the use of ova
from a donor would allow the applicant couple to fulfil their wish
for a child of which at least one of the applicants is the genetic
parent. However the prohibition of heterologous artificial
procreation techniques for in vitro fertilisation laid down by
section 3(1) of the Artificial Procreation Act, which prohibits sperm
donation rules out this possibility. There is no exception to this
rule.
- The
Court has established in its case-law that, in order for an issue to
arise under Article 14, there must be a difference in the treatment
of persons in relevantly similar situations (D.H. and Others
v. the Czech Republic [GC], no. 57325/00, §
175, ECHR 2007). Such a difference in treatment is discriminatory if
it has no objective and reasonable justification; in other words, if
it does not pursue a legitimate aim or if there is not a reasonable
relationship of proportionality between the means employed and the
aim sought to be realised. The Contracting State enjoys a margin of
appreciation in assessing whether and to what extent differences in
otherwise similar situations justify a different treatment (Stec
and Others v. the United Kingdom [GC], nos. 65731/01 and
65900/01, §§ 51-52, ECHR 2006-VI; Burden, cited
above, § 60).
- Thus,
the Court has to examine whether the difference in treatment between
the third and fourth applicants and a couple which, for fulfilling
its wish for a child may make use of artificial procreation
techniques without resorting to ova donation, has an objective and
reasonable justification, that is, if it does pursue a legitimate aim
or if there is a reasonable relationship of proportionality between
the means employed and the aim sought to be realised.
- The
Government argued that the prohibition of ova donation for in
vitro fertilisation adopted by the Austrian legislature pursued a
legitimate aim and was proportionate. In their view the Austrian
legislature struck a fair balance between the public and private
interests involved. They argue that the legislature had to set
certain limits on the possibilities offered by the medical techniques
of artificial procreation because it had to take account of the
morally and ethically sensitive nature and unease existing among
large sections of society as to the role and possibilities of modern
reproductive medicine.
- The
Court considers that concerns based on moral considerations or on
social acceptability are not in themselves sufficient reasons for a
complete ban on a specific artificial procreation technique such as
ova donation. Such reasons may be particularly weighty at the stage
of deciding whether or not to allow artificial procreation in
general, and the Court would emphasise that there is no obligation on
a State to enact legislation of the kind and to allow artificial
procreation. However, once the decision has been taken to allow
artificial procreation and notwithstanding the wide margin of
appreciation afforded to the Contracting States, the legal framework
devised for this purpose must be shaped in a coherent manner which
allows the different legitimate interests involved to be taken into
account adequately and in accordance with the obligations deriving
from the Convention.
- The
Government argued further that medically advanced techniques of
artificial procreation such as in vitro fertilisation carried
the inherent risk of not being employed only for therapeutic purposes
but for other objectives such as the “selection” of
children; in vitro fertilisation posed such a risk. In
addition, they submitted that there was a risk that ova donation
might lead to the exploitation and humiliation of women, in
particular from an economically disadvantaged background, as pressure
might be put on a woman to donate who otherwise would not be in a
position to afford an in vitro fertilisation in order to
fulfil her own wish for a child.
- The
Court considers that the risks associated with new techniques in a
sensitive field like medically assisted procreation must be taken
seriously and that it is in the first place for the domestic
legislator to assess these risks after carefully weighing the
different public and private interests involved and the dangers which
might be faced. However, a complete ban on the medical technique at
issue would not be proportionate unless, after careful reflection, it
was deemed to be the only means of effectively preventing serious
repercussions. In the present case the Court is not persuaded that a
complete ban was the only means at the disposal of the Austrian
legislature. Given that the Artificial Procreation Act reserves this
kind of intervention 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 that the Act
provides for further safeguards in order to minimise the risk, the
Court finds that the prohibition of ova and sperm donation for in
vitro fertilisation cannot be considered the only or the least
intrusive means of achieving the aim pursued.
- As
regards the argument of risk of exploitation of women and abuse of
these techniques, the Court considers that this is an argument which
does not specifically concern the procreation techniques at issue but
seems to be directed against artificial procreation in general.
Furthermore, potential abuse, which undoubtedly has to be combated,
is not a sufficient reason for prohibiting a specific procreation
technique as a whole, if there exists the possibility to regulate its
use and devise safeguards against abuse. In this respect the Court
observes that under Austrian law remuneration of ova and sperm
donation is prohibited by law.
- At
the hearing the Government also pointed out that obtaining ova for
the purpose of donation was a risky and serious medical intervention
which had serious repercussions for the donor. The Court appreciates
that the Austrian legislature makes an effort to avoid unnecessary
health risks but it notes in the first place that in case of
homologous in vitro fertilisation the risk incurred by the
woman from whom the ova are taken must be the same and this medical
intervention is one allowed by the Artificial Procreation Act. In so
far as the argument is linked to those concerning the risk of an
abuse of ova donation or its commercialisation, the Court considers
that the arguments given above are also valid in this context.
- The
Government also submitted that in vitro fertilisation raised
the question of unusual relationships in which the social
circumstances deviated from the biological ones, namely the division
of motherhood into a biological aspect and the aspect of “carrying
the child” and perhaps also a social aspect.
- The
Court observes that, according to the Constitutional Court's 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.
- The
aim of maintaining legal certainty in the field of family law by
keeping a long-standing principle of this field of law as one of its
basic features certainly has its merits. Nevertheless, unusual family
relations in a broad sense are well known to the legal orders of the
Contracting States. Family relations which do not follow the typical
parent-child relationship based on a direct biological link, are
nothing new and have already existed in the past, since the
institution of adoption, which creates a family relationship between
persons which is not based on descent but on contract, for the
purpose of supplementing or replacing biological family relations.
From this matter of common knowledge the Court would conclude that
there are no insurmountable obstacles to bringing family relations
which would result from a successful use of the artificial
procreation techniques at issue into the general framework of family
law and other related fields of law.
- The
Government relied on a further argument militating against the
permission of ova and sperm donation for in vitro
fertilisation, namely that children had a legitimate interest in
being informed about their actual descent, which, with donated sperm
and ova, would in most cases be impossible as the actual parentage of
a child was not revealed in the births, marriages and deaths
register.
- The
Court is not persuaded by this argument either. In this respect it
reiterates that respect for private life requires that everyone
should be able to establish details of their identity as individual
human beings and that an individual's entitlement to such information
is of importance because of its formative implications for his or her
personality (see, for example, Mikulić v.
Croatia, no. 53176/99, §§ 53-54, ECHR 2002-I, and
Gaskin v. the United Kingdom, judgment of 7 July
1989, Series A no. 160, p. 16, §§ 36-37, 39). This
includes obtaining information necessary to discover the truth
concerning important aspects of one's personal identity, such as the
identity of one's parents (see Jäggi v. Switzerland,
no. 58757/00, § 25, ECHR 2006-..., and
Odièvre v. France [GC], no. 42326/98,
§ 29, ECHR 2003-III).
- However,
such a right is not an absolute one. In the case of Odièvre,
cited above, which concerned anonymous birth and the
impossibility for the applicant to obtain information about her
biological parents, the Court found no breach of Article 8 of the
Convention because the French legislator had achieved a proper
balance between the public and private interests involved (see
Odièvre, cited above, § 49). The Court therefore
considers that the Austrian legislator could also find an appropriate
and properly balanced solution between competing interests of donors
requesting anonymity and any legitimate interest in obtaining
information of a child conceived through artificial procreation with
donated ova or sperm.
- In
conclusion the Court finds that the Government have not submitted a
reasonable and objective justification for the difference in
treatment between the third and fourth applicants, who are prevented
by the prohibition of ova donation for artificial procreation under
Section 3 of the Artificial Procreation Act from fulfilling their
wish for a child, and a couple which may make use of artificial
procreation techniques without resorting to ova donation.
Accordingly, there has been a violation of Article 14 of the
Convention taken in conjunction with Article 8 as regards the third
and fourth applicants.
b. The First and Second Applicants (sperm donation)
- The
first applicant suffers from fallopian-tube-related infertility and
the second applicant, her husband, is also infertile. It is not in
dispute that owing to their medical conditions only in vitro
fertilisation with the use of sperm from a donor would allow the
applicant couple to fulfil their wish for a child of which at least
one of the applicants is the genetic parent.
- However
the prohibition of heterologous artificial procreation techniques for
in vitro fertilisation laid down by section 3(1) of the
Artificial Procreation Act, which, in the circumstances of the first
and second applicant, rules out sperm donation excludes this
possibility. At the same time section 3 (2) of that Act allows sperm
donation for in vivo fertilisation.
- Therefore,
the Court has to examine whether the difference in treatment between
the first and second applicants who, for fulfilling their wish for a
child could only resort to sperm donation for in vitro
fertilisation and a couple which lawfully may make use of sperm
donation for in vivo fertilisation, has an objective and
reasonable justification, that is, if it does pursue a legitimate aim
or if there is a reasonable relationship of proportionality between
the means employed and the aim sought to be realised.
- The
Court observes at the outset that this artificial procreation
technique combines two techniques which taken alone are allowed under
the Artificial Procreation Act, namely in vitro fertilisation
with the gametes of the couple on the one and sperm donation on the
other hand. Thus, a prohibition of the combination of these lawful
techniques requires, in the Court's view, particularly persuasive
arguments by the Government.
- The
Court considers that the various arguments advanced by the Government
in order to justify the prohibition of ova donation are of little
relevance for the examination of the prohibition at issue. Some
relate to concerns against artificial procreation in general, while
there is no complete ban under Austrian law. Some, like preventing
the exploitation of women in vulnerable situations, limiting
potential health risks for ova donors and preventing the creation of
unusual family relations because of split motherhood simply do not
apply. Some, like the risk of eugenic selection and problems stemming
from the legitimate interest of children conceived through gamete
donation to be informed of their actual descent, are directed against
sperm donation, which, however, is allowed for the purpose of in
vivo fertilisation.
- In
justifying the prohibition of sperm donation the Government has
submitted a further argument. The reasons given for justifying this
difference in treatment between in vitro fertilisation and
artificial insemination were that the latter technique had already
been in use for a considerable time when the Artificial Procreation
Act entered into force and, because it was easy to handle and did not
necessarily require the assistance of a trained medical surgeon,
compliance with a prohibition would have been impossible to monitor.
- It
must be remembered that the Convention is designed to “guarantee
not rights that are theoretical or illusory but rights that are
practical and effective” (see, inter alia, Folgerø
and Others v. Norway [GC], no. 15472/02, § 100, ECHR
2007-..., and Salduz v. Turkey [GC], no. 36391/02, §
51, 27 November 2008). The Court must therefore take into account the
effectiveness of a given instance of interference when assessing
whether there exists a reasonable relationship of proportionality
between the means employed and the aim sought to be realised. Thus,
the Court finds that it is legitimate to take also into account
whether the interference envisaged by the State would be an effective
means of pursuing a legitimate goal.
- Even
if one were to accept this argument submitted by the Government as a
question of mere efficiency it must be balanced against the interests
of private individuals involved. In this respect the Court reiterates
that where a particularly important facet of an individual's
existence or identity is at stake, the margin allowed to the State
will be restricted (see Evans, cited above, § 77; X.
and Y. v. the Netherlands, judgment of 26 March 1985, Series
A no. 91, §§ 24 and 27; Dudgeon, cited above, § 52
and Christine Goodwin v. the United Kingdom [GC], no.
28957/95, § 90, ECHR 2002-VI). In the Court's view the wish
for a child is one such particularly important facet and, in the
circumstances of the case, outweighs arguments of efficiency. Thus,
the prohibition at issue lacked a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised.
- The
Court therefore finds that the difference in treatment between the
first and second applicants who, for fulfilling their wish for a
child could only resort to sperm donation for in vitro
fertilisation and a couple which lawfully may make use of sperm
donation for in vivo fertilisation, had no objective and
reasonable justification and was disproportionate. Accordingly, there
has been a violation of Article 14 of the Convention taken in
conjunction with Article 8 as regards the first and second
applicants.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants also complained that the prohibition of heterologous
artificial procreation techniques for in vitro fertilisation
laid down by section 3(1) and 3(2) of the Artificial Procreation
Act had violated their rights under Article 8 of the Convention.
- In
the circumstances of the present case the Court considers that in
view of the considerations under Article 14 read in conjunction with
Article 8 of the Convention no separate issue arises under
Article 8 of the Convention alone.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- Without
distinguishing between pecuniary and non-pecuniary damages the
applicants claimed a sum of EUR 20,000 for each applicant couple.
They submitted that as a consequence of the prohibition under the
Artificial Procreation Act they had suffered great emotional
distress. In addition, they had been forced to obtain the necessary
treatment in other countries where it was readily available, as a
result of which they had incurred considerable additional costs.
Eventually they had had to abandon their wish to have children of
their own and resort to adoption, which had also been a difficult and
painful decision.
- In
so far as the applicants claimed non-pecuniary damages, the
Government refrained from any comment as the suffering of the
applicants did not lend itself to any evaluation in terms of money.
In so far as the applicants appeared to be claiming an award in
respect of pecuniary damage, the Government submitted that there was
no causal link between the violation found and the damages claimed as
regards the costs for treatment undergone and expenses incurred for
adoption.
- The
Court does not discern any causal link between the violation found
and the claim in respect of pecuniary damage. Accordingly, no award
can be made under this head. However, the applicants have undoubtedly
sustained non-pecuniary damage. Making an assessment on an equitable
basis, the Court awards each applicant couple EUR 10,000 as
compensation for non-pecuniary damage.
B. Costs and expenses
- The
applicants claimed EUR 15,000 per applicant for costs and expenses
incurred both in the domestic proceedings and the proceedings before
the Court.
- The
Government considered this claim excessive and, on the basis of their
own calculation, were only ready to pay compensation for procedural
costs in an amount of EUR 22,000 (inclusive of VAT) for
representation of all applicants in the domestic proceedings and in
the proceedings before the Court.
- The
Court observes that the applicants have not submitted any bills which
would justify awarding a higher amount than the one accepted by the
Government. Accordingly, the Court awards under this head EUR 18,333
for costs and expenses incurred by all applicants in the proceedings
before the domestic instances and the Court for both lawyers
appearing before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Holds by five votes to two that there has been a
violation of Article 14 of the Convention read in conjunction
with Article 8 as regards the third and fourth applicants;
- Holds by six votes to one that there has been a
violation of Article 14 of the Convention read in conjunction
with Article 8 as regards the first and second applicants;
- Holds unanimously that it is not necessary to
examine the application also under Article 8 of the Convention;
- Holds unanimously
(a) that
the respondent State is to pay each applicant couple, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage
and to pay all the applicants EUR 18,333 (eighteen thousand
three-hundred and thirty-three euros), plus any tax that may be
chargeable to the applicants, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicants' claim for just satisfaction.
Done in English, and notified in writing on 1 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following dissenting opinions of
Judge Steiner and Judge Jebens are annexed to this judgment.
C.L.R.
A.M.W.
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, in 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.
- 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.
- 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.
