ECLJ says ECHR decision proclaiming the “right to have a child through artificial reproduction” is “legally and ethically unacceptable”

In a decision taken on April 1^st 2010, the First Section of the European Court of Human Rights (ECHR) has affirmed that the “wish for a child”(sic) is protected by the European Convention, and that its fulfilment through artificial procreation techniques should not be prevented by unjustified discriminations. The Court based its judgment on the false assumption of the existence of a “right of a couple to conceive a child and to make use of medically assisted procreation for that end”.

In the Court's view, the “wish for a child” is a “particularly important facet of an individual's existence”, and therefore the margin of appreciation “allowed” to the State in this area must

be “restricted”; i.e. the State’s sovereignty to rule on this matter is strictly limited.

The Court also affirmed, in order to ground its decision “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 based on a biological and genetic link is not a legitimate concern, since “unusual family relations in a broad sense are well known to the legal orders of the Contracting States.”

“This decision is legally and ethically unacceptable; it diminishes the States sovereignty in ethical matters, it is not inferred from the European Convention, and it opens the doors to many other ethical abuses”, said Dr Grégor Puppinck, Director of the ECLJ. One of the potential consequences of this decision would be the recognition of a right for “same sex couples” to fulfil their “wish for a child” through artificial procreation, since discrimination based on “gender identification” and “sexual orientation” is generally not allowed by the Court. If “theconcerns based on moral considerations or on social acceptability are not appropriate to regulate biotechnology, what is the purpose of bioethics?” wonders Dr. Puppinck.

A panel of five judges has decided, upon Austrian demand, to refer the case, for a new trial, before the Grand Chamber. The European Centre for Law and Justice welcomes this referral and will ask the Court leave to intervene before the Grand Chamber, representing authorities concerned by bioethics. The ECLJ is already third party in the A.B. & C. v. Ireland case, another important bioethical case pending before the Grand Chamber.

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On the 1st of April 2010, the First Section of the Court issued its decision in the caseS.H. and Others v. Austria (n° 57813/00). In this decision, the Court ruled that the ban on using sperm and ova donation for in vitro fertilisation is “unjustified” and constitutes a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for family life) of the European Convention on Human Rights.

This decision is heavily problematic because it presupposes the existence of a kind of “right to have a child” and because it disrespects the national sovereignty in bioethical issues. The government of Austria requested the referral of this decision to the Grand Chamber. The referral was granted on 4^th October 2010. The ECLJ will ask the Court for authorisation to intervene in this case as third party (amicus curiae).

The case concerns two couples living in Austria. In the first case, in order to have a child, the couple would need in vitro fertilisation with a sperm donation. This means that only the mother would be the genetic parent of the child.

In the case of the other couple, both are completely sterile: they would needin vitro fertilisation with both a sperm and an egg donation. There would be no genetic link between the child and his parents. These situations refer more to artificial procreation than to medically assisted procreation.

The Austrian Artificial Procreation Act prohibits heterogonous techniques, while accepting as lawful only homologous techniques. In other terms, it prohibitsin vitro fertilisation only when the embryo is conceived with an ova or/and sperm from a donor. However, the Act allows other assisted procreation techniques, in particular in vitro fertilisation only with ova and sperm from the couple itself. In addition, the Act authorizes the use of sperm from a donor but only for an in utero fertilisation process. These provisions are the result of an ethical discussion in Austria considering that the use of in vitro fertilisation as opposed to natural procreation raised serious ethical problems. The Austrian government has pursued the 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, preserving the biological link between the children and its parents and similarly with the natural procreation.

As a consequence, the Austrian Artificial Procreation Act does not permit the artificial reproduction techniques that would permit the applicants to fulfil their “wish for a child”.

The couples lodged an application before the European Court on 8^th May 2000, alleging in particular that the provision of the Austrian Artificial Procreation Act prohibiting the use of heterogonous ova and sperm for in vitro fertilisation violates their rights. In particular, the applicants claim that it would violate their right to privacy (art.8), and their right to not suffer from discrimination in the access to artificial reproduction techniques (art. 14). In regard to “discrimination”, the applicants complain in particular that they are victims of a difference in treatment which lacks objective and reasonable justification comparing their situation 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 German Government has been authorized by the Court to intervene as a third-party. In its amicus brief, the German government has taken the side of Austria and explained that the prohibition of IVF with egg donation is aimed at protecting the child's welfare by ensuring the unambiguous identity of the mother. In addition, Germany recalled that “biologically, only women are 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.” A hearing on the merits of the application took place in public on 28 February 2008.

In its April 1^st 2010 decision, the First Section of the European Court of Human Rights founded its decision on the following five main assumptions:

1 The “right of a couple to conceive a child and to make use of medically assisted procreation for that end” exists and “comes within the ambit of Article 8.” (§ 60)

2 “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.” (§ 74)

3 The preservation of the model of the family based on a biological and genetic link is not a legitimate concern, since “unusual family relations in a broad sense are well known to the legal orders of the Contracting States.” (§81)

4 The margin of appreciation “allowed” to the State to rule in matters of human reproduction is “restricted” because the “wish for a child” is a “particularly important facet of an individual's existence”. (§93)

5 The situation of the applicants is not different enough from the one of the couples entitled to artificial procreation to justify a difference of treatment (i.e. a discrimination).

In regard to the other arguments justifying the Austrian legislation, such as the risk of exploitation of women and of eugenic practices, the Court just noted that “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. (…) 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.” (§76)

In order to refute the Austrian argument that there is a need to avoid a child having two mothers (one genetic and one biological) and to maintain legal certainty in the field of family law, the Court simply answered that “unusual family relations in a broad sense are well known to the legal orders of the Contracting States.” (§81) The Court continued saying that the Austrian government shall not be reluctant to permit new kinds of “unusual family relations” that “do not follow the typical parent-child relationship based on a direct biological link” (§81). For example, it could be “family relationship between persons which is not based on descent but on contract”.

If this decision is upheld by the Grand Chamber, the flood gates will open for the recognition of a protected right for same sex couples to access artificial procreation with egg or sperm donors exactly like a couple composed of a man and a woman. The Court has already affirmed that adoption of children shall be granted without discrimination based on sexual orientation. Therefore, if the “wish for a child” should be fulfilled through adoption without discrimination based on sexual orientation; why should it be different, from the Courts perspective, for the fulfilment of “same-sex couples wish for a child” through artificial procreation? The choice of the expression “wish for a child” used by the Court is already significant, since it is much more inclusive than the right or whish to have a child. The “wish for a child” can be fulfilled with other people’s children, through adoption and heterogonous artificial procreation.

In this April 1^st decision, the Court ruled one step further in the demolition of the specific legal protection granted in the Convention to the family based on the union of a man and a woman. The Court has also ruled further again by extending the scope of application of Article 8 to the “wish for a child”. Previously, the Court declared that the notion of “private life” is a “broad concept which encompasses, inter alia, the right to establish and develop relationships with other human beings, the right to “personal development” or the right to self-determination as such. It encompasses elements such as names, gender identification, sexual orientation and sexual life, and the right to respect for the decisions both to have and not to have a child.” (§ 58)

It should also be noticed that the Court used the same reasoning as in the recent well-known abortion case “Tysiac v. Poland”, (ECHR, 20 March 2007, n° 5410/03) emphasising that once a State decides to allow artificial procreation or abortion, it must be carried out in a manner which satisfies the Court (it must be done 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.” (§74)) But a State still has no obligation to allow artificial procreation or abortion.

A reversal of this decision is necessary and possible.

The fact that the panel agreed to refer the case is already a clear indication and acknowledgment from the Court that this case raises serious issues.

According to the ECLJ, each of the five main assumptions of the April 1^st decision can easily be reversed. The dissenting opinions of Judges Jebens and Steiner published at the end of the Court decision are very enlightening in that sense.

Also, until now, these bioethical issues have always been decided at a national level according to the specific moral tradition of each country or at the international level through negotiated conventions, such as the Convention of Oviedo 1997. It is not the duty of the Court to decide on this issue of bioethics but rather the individual Member State. The Court is not a “bioethical committee”, and it is clear that this April 1^st decision would have never been reached through the Intergovernmental negotiation process. Judge Jebbins, in its dissenting opinion, made clear that the Court should not have interfered with Austrian ethicalarbitration: “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”.

Finally, the ECLJ notices that “where as the Court used inappropriate concepts such as the concept of non-discrimination and the right to fulfil its own “wish for a child”, conversely, we do not see any reference from the Court side to the central notions of human dignity, and respect for the natural anthropology. By using the concept of non-discrimination the Court is side stepping any discussion on the morality of the biomedical practice in question.”

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Related documents:

ECHR, 1st Sec, 1 April 2010, S.H. and Others v. Austria (n° 57813/00).

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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.