CEDH · CASELAW;CLIN;ENG — 1 avril 2010

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Austria - 57813/00 Judgment 1.4.2010 [Section I] Article 14 Discrimination Prohibition under domestic law on the use of ova and sperm from donors for in vitro fertilisation: violation [This case was referred to the Grand Chamber on 4 October 2010] Facts – The applicants are two married couples. Both couples suffer from infertility and wish to use medically assisted procreation techniques. In the case of the first couple only in vitro fertilisation (“IVF”) with the use of sperm from a donor would allow them to have a child of whom one of them is the genetic parent. The second couple require IVF with the use of ova from a donor if they are to have a genetically linked child. However, both of these possibilities are ruled out by the Austrian Artificial Procreation Act (“the Act”), which prohibits the use of sperm from a donor for IVF and ova donation in general. The Act does, however, allow other assisted procreation techniques, in particular IVF with ova and sperm from the spouses or cohabitating partners themselves (homologous methods) and, in exceptional circumstances, donation of sperm when it is introduced into the reproductive organs of a woman. The applicants applied to the Constitutional Court, which found that there had been an interference with their right to respect for family life; however, it considered that the interference had been justified, as the Act aimed at preventing unusual relationships (namely the division of motherhood into a biological aspect and the aspect of “carrying the child”) and the exploitation of women. Law – Article 14 in conjunction with Article   8: The right of a couple to conceive a child and to make use of medically assisted procreation for that end came within the ambit of Article   8. Article   14, taken in conjunction with Article   8, was therefore applicable. There was no uniform approach to medically assisted procreation among the State Parties to the Convention. Moreover, the use of IVF treatment gave rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments. The margin of appreciation to be afforded to the respondent State had therefore to be a wide one. (a)     Ova donation – The Court had to examine whether the difference in treatment between the second couple and a couple which, to fulfil its wish for a child, used artificial procreation techniques without resorting to ova donation had an objective and reasonable justification. Concerns based on moral considerations or on social acceptability were not in themselves sufficient reasons for a complete ban on a specific artificial procreation technique such as ova donation. Such reasons could be particularly weighty at the stage of deciding whether or not to allow artificial procreation in general, and there was no obligation on a State to allow artificial procreation. However, once the decision had 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 had to be shaped in a coherent manner which allowed the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention. The risks associated with new techniques in a sensitive field like medically assisted procreation had to be taken seriously and it was in the first place for the domestic legislature to assess those 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 was not persuaded that a complete ban had been the only means at the disposal of the Austrian legislature. Given that the Act reserved this kind of intervention to specialised medical doctors, who had particular knowledge and experience in this field and were themselves bound by the ethical rules of their profession, and that the Act provided for further safeguards in order to minimise the risk, the Court found that the prohibition of ova and sperm donation for IVF could not be considered the only or the least intrusive means of achieving the aim pursued. As regards the risk of exploitation of women and abuse of these techniques, this was not a sufficient reason for prohibiting a specific procreation technique as a whole, as it was possible to regulate its use and devise safeguards against abuse. In particular, under Austrian law remuneration of ova and sperm donation was prohibited. As regards the health risks for the ova donor, they would be the same as in homologous IVF, which was allowed by the Act. As regards the possibility of unusual relationships, family relations, which did not follow the typical parent-child relationship based on a direct biological link, were nothing new and had already existed in the past, since the institution of adoption. There were 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. Moreover, the Austrian legislature could also find an appropriate and properly balanced solution between the 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 Government had not submitted reasonable and objective justification for the difference in treatment between the second couple and a couple using artificial procreation techniques without resorting to ova donation. Conclusion : violation (five votes to two). (b)     Sperm donation – The Court had to examine whether there was any objective and reasonable justification for the difference in treatment between the first couple who could only resort to sperm donation for IVF, and a couple lawfully using a sperm donation for in vivo fertilisation. This artificial procreation technique combined two techniques which, taken alone, were allowed under the Act, namely IVF with the gametes of the couple on the one hand and sperm donation on the other. Thus, a prohibition of the combination of these lawful techniques required particularly persuasive arguments.Most of the arguments put forward by the Government were not specific to sperm donation for IVF, however. As regards the argument that artificial insemination, in contrast to IVF, had been in use for some time and was easy to handle and that its prohibition would therefore have been hard to monitor, the Court found that a question of mere efficiency had to be balanced against the interests of the private individuals involved. Where a particularly important facet of an individual’s existence or identity was at stake, the margin allowed to the State would be restricted. The wish for a child was one such particularly important facet and, in the circumstances of the case, outweighed arguments of efficiency. Thus, the prohibition at issue had lacked a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The difference in treatment between the first couple and a couple lawfully using a sperm donation for in vivo fertilisation had had no objective and reasonable justification and had been disproportionate. Conclusion : violation (six votes to one). Article 41: EUR 10,000 to each applicant couple in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes