National ban on donor-assisted in vitro fertilisation lawful

National laws banning the use of sperm and ova donation for in vitro fertilisation do no breach the right to family life in article 8 ECHR, the European Court of Human Rights has ruled.

Nevertheless, the Strasbourg court's Grand Chamber suggested the pace of scientific and social change was such that governments should consider reviewing their national legislations with a view to making donor-assisted procreation lawful.

Upholding Austria's ban last Thursday in SH and others v Austria (application 57813/00), the 17-judge chamber said that despite a 'clear trend' in Europe legalising in vitro fertilisation involving donors, there was no 'clear common ground' yet across all ECHR countries as the question still gave rise to 'sensitive moral and ethical issues'.

The chamber recognised there was an 'emerging consensus' in relation to IVF treatment, but said this was not based on 'settled and long-standing principles established in the law of the member states 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 state'.

But while 'concerns based on moral considerations or on social acceptability must be taken seriously', the judges said, these were no sufficient justification for a complete ban on a specific artificial procreation technique such as ovum donation.

However, the speed of scientific and legal development made it difficult to provide a 'sound basis' for legislation in the field of artificial procreation, the court said as it accepted Austria's arguments to justify the ban.

'It is understandable that the States find it necessary to act with particular caution,' the court said, accepting that in this case the ban was intended to 'prevent potential risks of eugenic selection and their abuse and to prevent the risk of exploitation of women in vulnerable situations as ovum donors'.

This 'cautious and careful approach' fell within Austria's margin of appreciation under article 8 and the convention had therefore not been breached.

The Strasbourg judges also pointed out that the ban was merely internal, as there was no prohibition in Austrian law on going abroad to seek infertility treatment using artificial procreation techniques not allowed in Austria. Further, where treatment is successful, Austrian law recognises the infertile couple as parents.

Nonetheless, the Grand Chamber said Austria could have devised a different legal framework for regulating artificial procreation that would have made ovum donation permissible, as was the case in a number of ECHR countries.

In particular, it said, Austria was yet to undertake a thorough assessment of the rules governing artificial procreation that would take into account 'the dynamic developments in science and society'.

The judges noted that even the Austrian constitutional court when it considered the case in 1998, envisaged that the criteria applied at the time would need to evolve in line with the development of medical research and social change.

'The government have given no indication that the Austrian authorities have actually followed up this aspect of the ruling of the Constitutional Court,' they said.

They went on: 'In this connection the court reiterates that the Convention has always been interpreted and applied in the light of current circumstances. Even if it finds no breach of article 8 in the present case, the court considers 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.'

Five of the European judges dissented (Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria), saying that in their opinion Austrian law breached article 8.

A sixth judge, Judge de Gaetano, voted with the majority but said a ban of the kind challenged could always be justified on the ground of the 'inalienable value and intrinsic dignity of every human being'.

The Italian government was one of five interveners in the case and argued that there was no positive obligation on ECHR signatory countries to make medically assisted procreation techniques available to infertile couples.

It further argued that allowing ovum donation would 'call maternal filiation into question' and 'lead to a weakening of the entire structure of society'.

The German government presented similar arguments, saying that artificial insemination using a third-party ovum was a criminal offence in Germany.

It said the ban was intended in the interest of child welfare and that splitting motherhood between genetic and biological would be 'counter to the established principle of unambiguousness of motherhood which represented a fundamental and basic social consensus'.

In its initial ruling in April 2010 the Strasbourg court found that the applicant couples had been discriminated against under the combined application articles 8 and 14.