IVF using donated eggs or sperm other than from a spouse will remain banned in Austria. This was the final decision made by the Grand Chamber of the European Court of Human Rights (the Court) on 3 November in the closing of the case SH and others v Austria.
The verdict that IVF using third party donor eggs or sperm is not in breach of Article 8 the European Convention on Human Rights (the right to respect private and family life) reverses a prior judgment by a lower division of the Court in favour of the applicants passed in April 2010.
In giving judgment, the Court held that while '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', the Austrian prohibitions were justified at the time.
The Austrian government had contended that IVF 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'.
The Court agreed that IVF does involve 'sensitive moral and ethical issues against a background of fast-moving medical and scientific developments'. However, since 'the questions raised by the case touch on areas where there is not yet clear common ground amongst the member states', Austria must be given a wide margin of appreciation in legislating in this area.
'There is now a clear trend in the legislation of the [member states] towards allowing gamete donation for the purpose of [IVF], which reflects an emerging European consensus', the judgment read. 'That emerging consensus is not, however, based on settled and long-standing principles established in the law of the member [s]tates 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 [s]tate'.
The Court reasoned that such were the unknown long-term consequences of legislation in the area of artificial reproduction, it found it 'understandable' that some member states find it 'necessary to act with particular caution in the field of artificial procreation'.
The case was brought by two couples who lodged a request with the Austrian Constitutional Court in 1998 stating that the Austrian Procreation Act, which prohibits the use of eggs or sperm from a donor outside of the marriage, was discriminatory and a violation of their rights to family and private life. Donation using a third party would have been the only way in which the two couples, who wish to remain anonymous, would have been able to conceive children. One woman, known as SH, is infertile because of blocked fallopian tubes. Her husband is also infertile. The other, HE-G, has agonadism, which means that she does not produce eggs.
The Constitutional Court ruled against the couples, however, stating that the interests of the individuals concerned had to give way to the public interest in the well-being of the child and the ethical and social risks of 'commercialisation and selective reproduction'. This decision was overturned by a Chamber of the European Court on 1 April 2010, to be once again overturned by the Grand Chamber on appeal by the Austrian Government.
The Court opined that the Austrian legislation was 'guided by the idea that medically assisted procreation should take place similarly to natural procreation' and the '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 [egg] donors'.
Under the Artificial Procreation Act, other assisted reproduction techniques are permitted however. IVF using eggs or sperm from spouses or cohabitating partners themselves (homologous methods) is permitted under the Act and so is 'in vivo insemination' using donated sperm. The allowances 'show[...] the careful and cautious approach adopted by the Austrian legislature in seeking to reconcile social realities with its approach of principle in this field', the Court said, adding that it found it relevant that Austrians are also permitted to travel abroad to receive fertility treatment unavailable in their home country.
The Court said the Constitutional Court previously found 'the fact that insemination in vivo with donor sperm was allowed while ovum (egg) donation was not, did not amount to discrimination since sperm donation was not considered to give rise to a risk of creating unusual relationships which might adversely affect the well-being of a future child'.