23 January 2012
School of Law, City University of New York, USAAppeared in BioNews 641
In S.H. v Austria (1), its most recent pronouncement on reproductive technology, the ECtHR declined to define the right any further and held that the individual member states of the Council of Europe should themselves decide whether, how, and when to allow citizens to use reproductive technology. S.H. brings sharply into focus the Court's unwillingness to play a more participatory role in these controversies or to envisage the Convention as having much to say on the question. In effect, the decision signals that assisted reproduction is not an international human right in Europe.
The ECtHR has dealt with questions involving assisted reproduction on four occasions. S.H. was the only case not brought against the United Kingdom. The petitioners in all four cases claimed violations of Article 8, the Convention's guarantee of family and private life. Three cases involved access to procedures, and the fourth dealt with legal parentage in a case of artificial insemination by donor. The first three to come before the ECtHR were headline-grabbers: a couple fighting over the right to use frozen embryos (2), a female-to-male transsexual seeking legal recognition as a father (3), and a prisoner seeking to impregnate his wife via the transport of his sperm beyond the prison walls (4).
In the last of these, the Court struck a hopeful note: '[W]here a particularly important facet of an individual's existence or identity is at stake (such as the choice to become a genetic parent), the margin of appreciation accorded to a state will in general be restricted'. This statement carried little weight, however, in S.H., the only one of the cases involving the more common problem of infertile couples stymied in their efforts to have a family by a legal ban on gamete donation.
Austria prohibits egg donation altogether and sperm donation for IVF because it favours genetic ties in parent-child relationships and wishes to protect women who might be exploited by egg donation. Austria does not object to sperm donation for artificial insemination because it is a well-known and not particularly sophisticated method that can easily be performed at home and would be difficult to prevent. The ECtHR admitted that there is a consensus in Europe to allow gamete donation for IVF, but characterised the consensus as too malleable, too subject to change in response to the 'fast-moving medical and scientific developments' that generated it.
Such a consensus, according to the Court, is not the type that should limit a government's discretion to regulate as it sees fit in this area. Moreover, the Court believed that physicians were not in a particularly good position to avert the unknown consequences to children of 'splitting motherhood'. Finally, it was determined that Austria's regulation was fair and measured because it left open the possibility that Austrians barred from certain procedures at home could have them performed abroad in more permissive countries.
S.H. sends a strong signal that European countries are free to impose whatever restrictions on assisted reproduction they may desire and that they might even be permitted to outlaw assisted reproduction altogether (5). Although no country in Europe bans assisted reproduction, the ECtHR's traditional vindication of the rights of genetic parents in its decisions on children born out of wedlock and in the Dickson case described above, makes it likely that it would approve of a ban on the use of the gametes of third parties in assisted reproduction. This was not precisely the question presented in S.H., which was complicated by the Austrian law's lopsided treatment of egg donation and sperm donation.
Nevertheless, the option to travel abroad for treatment may well embolden the Court to allow governments to discriminate against those needing third-party gametes, as some already do. Reproductive tourism played an important role both in S.H. and in the Court's recent decision that Ireland was not bound to liberalise its restrictions on abortion given the availability of abortion in other member states (6). With reproductive tourism a ready justification for restricting assisted reproduction, the ECtHR and the Convention will for the time being remain poor sources of support for a great many Europeans who would prefer to seek reproductive treatment at home.