By Grégor Puppinck, PhD, Director of the ECLJ
Today, the Grand Chamber of the European Court of Human Rights has delivered its final judgment in the case of S. H. and others v. Austria (application no. 57813/00), reversing a prior judgment, and deciding that the Austrian ban on using sperm and ova donations for in vitro fertilisation (heterologous IVF) respects the European Convention on Human Rights, and in particular is not in breach of the right to respect for private and family life (Article 8 of the Convention). The previous decision issued by the First Section on the 1st of April 2010, was heavily problematic because it undermined the family; it presupposed the existence of a “right to have a child” and disrespected national sovereignty in bioethical issues.
The Grand Chamber, by thirteen votes to four, has overturned the first decision issued on April 1st 2010 by the First Section of the Court (7 judges) holding that there has been no violation of Article 8 of the Convention. In addition, the Grand Chamber has held unanimously, that it is not necessary to examine the application also under Article 14 of the Convention read in conjunction with Article 8.
For the ECLJ, the decision of the Grand Chamber to reverse this first judgment is of fundamental importance, because it confirms that the reference to “natural procreation” and to the “natural family” (with only one mother and one father), as the model for the regulation of the techniques of artificial procreation, justifies the ban of IVF with sperm or ova donations. It also confirms that the sensitive moral questions raised by IVF can legitimately be taken into consideration by national legislators. The First Section decision had a devastating effect on both the ontology and on the law: it was the destruction of the biological family as the social model, as well as the destruction of the “moral considerations” as a legitimate counterbalance of the use of biotechnologies. The Grand Chamber ruling comes only a few days after another major ruling on bioethics, delivered by the European Court of Justice (Luxembourg’s EU Court) in the case of Brüstle v. Greenpeace, which is also a victory for ethics and bioethics with regard to a purely immoral and utilitaristic vision of science and of human beings.
A decision being overturned like this is quite exceptional; the last time this occurred in a sensitive case was in the crucifix case (Lautsi v Italy), decided by the Grand Chamber in March 2011. These overturned decisions may indicate a Court’s new tendency to exercise “self restraint” from judicial activism on ideological matters. Decisions on such issues instead belong primarily to national legislators. The Court reasserted the principle - omitted by the First section - according to which “the central question in terms of Article 8 of the Convention is not whether a different solution might have been adopted by the legislature that would arguably have struck a fairer balance [according to the ECHR’s point of view], but whether, in striking the balance at the point at which it did, the Austrian legislature exceeded the margin of appreciation afforded to it under that Article” (§ 106). As the role of the Court is in principle limited to control the respect of the Convention’s obligations, we welcome the restraint of the Court from imposing its specific political views on national legislators with regard to these sensitive matters. This is essential for the respect of State sovereignty, especially in such controversial and ethical maters.
Both the Italian and German governments have intervened before the Grand Chamber in support of Austria. The ECLJ has also been authorised to intervene as a third party in the procedure, leading a collective intervention of 51 Parliamentarians and 7 NGOs. See here the written observations submitted on January 31st by the ECLJ. (in French)
It should be noted that the Grand Chamber refuses to answer the question “whether there exists a positive obligation on the State to permit certain forms of artificial procreation using either sperm or ova from a third party”. A negative answer to this question would have been inevitable. On the contrary, assuming that the ban of heterologous techniques is an interference of the State with the applicants’ right of respect for their family life, the Court analysed the justification of this ban while taking into account other social interests (assessments of the “negative obligations” of the State).
In its analysis on the merits, the Grand Chamber acknowledges, contrary to the First Section assessment, that Austria enjoys a “wide margin of appreciation”, as the use of in vitro fertilisation treatment “raises sensitive moral or ethical issues.” (§ 94).
The Grand Chamber continued, recognising the legitimacy of the Austrian legislature’s conviction “that medically assisted procreation should take place similarly to natural procreation, and in particular that the basic principle of civil law – mater semper certa est [the mother is always certain] – 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.” (§ 104).
The Grand Chamber also recognizes that the “splitting of motherhood between a genetic mother and the one carrying the child differs significantly from adoptive parent-child relations” (§105). Once again contradictory to the assessment of the First section, the Grand Chamber recognizes the specific problem caused by the splitting of motherhood. The same reasoning is to be applied concerning the splitting of fatherhood caused by sperm donation.
On the contrary, the First Section affirmed inter alia, “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” and that the preservation of the model of the family as a “parent-child relationship based on a direct biological link” (§81) is not a legitimate concern. According to the same decision from 2010, the Austrian government shall not be reluctant to permit new kinds of “unusual family relations”, for example based “on contact”.
It has also to be welcomed that the Court accepted the argument of the Austrian Government, according to which artificial procreation is “a controversial issue in Austrian society, raising complex questions of a social and ethical nature on which there was not yet a consensus in the society and which had to take into account human dignity, the well-being of children thus conceived and the prevention of negative repercussions or potential misuse.” (§ 112)
On a more negative note, the Grand Chamber confirmed the Section assessment 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”. The ECLJ argued and maintained, along with the Italian government, that there is no “right of a couple to conceive a child and to make use of medically assisted procreation” under the Convention. There is only a right to attempt to conceive a child; otherwise, in an Orwellian style, the State would ultimately have to provide for the children. At the end of its decision, even if it finds no breach of the Convention, the Grand Chamber could not refrain from advising the Austrian legislator that “this area, in which the law appears to be continuously evolving and which is subject to a particularly dynamic development in science and law, needs to be kept under review by the Contracting States” (§ 118), substituting itself to the national legislator
Finally, with this decision, family and States sovereignty on moral matters are preserved. In the current process of the reform of the Court, many States will appreciate that the Court distances itself from judicial activism, and also, hopefully, from the monopoly of a very postmodern ideology.
The European Centre for Law and Justice (ECLJ) is a Non-Governmental Organisation focusing on the protection of human rights and on the promotion of “the spiritual and moral values which are the common heritage of European’s peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy;” (Preamble of the Statute of the Council of Europe). Attorneys for the ECLJ have served as counsel in numerous cases before the European Court of Human Rights. Additionally, the ECLJ has special Consultative Status with ECOSOC of the United Nations, and is accredited to the European Parliament.
 As summarised by the Court, “In the view of the Italian Government, Article 8 did not protect a person’s or a couple’s right to conceive a child and to make use of medically assisted procreation for that purpose. Thus, there was no positive obligation under that provision for Contracting States to make available to infertile couples all existing medical techniques of procreation. The lack of a European consensus on the question of medically assisted procreation conferred a wide margin of appreciation on the Contracting States, allowing them to make their own policy decisions on such a complex matter that had far-reaching scientific, legal, ethical and social implications. In vitro fertilisation, which had a direct effect on human life and the foundations of society, was clearly a highly sensitive matter on which no European consensus had been reached. Medically assisted procreation also involved serious risks. Gamete donation might lead to pressure on women on moderate incomes and encourage trafficking of ova. Scientific studies also showed that there was a link between IVF treatment and premature births. Lastly, to call maternal filiation into question by splitting motherhood would lead to a weakening of the entire structure of society.”
 As summarised by the Court: “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. This prohibition was intended to protect the child’s welfare by ensuring the unambiguous identity of the mother. Splitting motherhood into a genetic and a biological mother would result in two women having a part in the creation of a child and would run counter to the established principle of unambiguousness of motherhood which represented a fundamental and basic social consensus. Split motherhood was contrary to the child’s welfare because 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. There was also the danger 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. 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 all these reasons split motherhood constituted a serious threat to the welfare of the child which justified the existing prohibitions under the Embryo Protection Act.”
 The ECLJ represents 51 Parliamentarians and 7 Non-Governmental Organisations: World Union of Catholic Women's Organizations (WUCWO); FAFCE Federation of Catholic Family Associations in Europe (FAFCE)- Katholischer Familienverband Osterreich ; Human Life International (HLI) Austria; Institut fur Ehe und Familie (IEF); Freie Christengemeinde Osterreich; Bund Evangelikaler Gemeinden in Osterreich and European Dignity Watch.