H and others v Austria
| Judge | JUDGES COSTA (PRESIDENT),BRATZA,TULKENS,CASADEVALL,STEINER,FURA,JOCIENE,SIKUTA,POPOVIC,ZIEMELE,HIRVELA,LAZAROVA TRAJKOVSKA,BIANKU,TSOTSORIA,KARAKAS,RAIMONDI,DE GAETANO |
| Judgment Date | 03 November 2011 |
Private and family life – Right to conceive a child – Medically-assisted procreation techniques – In vitro fertilisation (IVF) treatment – Statutory provisions on medically-assisted procreation techniques prohibiting use of ova from donors and sperm from donors for IVF – Applicants requiring prohibited techniques to conceive children – Whether prohibition of techniques violating applicants’ right to respect for their private and family life – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The first applicant suffered from fallopian-tube-related infertility. The second applicant, her husband, was also infertile. Owing to their medical conditions, only in vitro fertilisation (IVF) with the use of sperm from a donor would allow them to conceive a child of which at least one of them was the genetic parent. Whilst the third applicant suffered from agonadism, which meant that she did not produce ova at all, her husband, the fourth applicant, could produce sperm fit for procreation. The only way for them to conceive a child was IVF with the use of ova from a donor. The respondent state’s Artificial Procreation Act (the Act) prohibited the use of ova from donors and sperm from donors for IVF, although it allowed sperm donation for in vivo fertilisation in exceptional circumstances. The legislature had enacted as leading features of the Act that, in principle, only homologous methods would be allowed to avoid the forming of unusual personal relations such as a child having more than one biological mother (a genetic mother and one carrying the child) and to avoid the risk of exploitation of women. The reasons for allowing in vivo artificial insemination, as set out in the explanatory report to the government’s bill on the Act, included that, because it was such an easily applicable procreation method, compared with others, it could not be monitored effectively. The government also claimed that, as that technique had been in use for a long time, its prohibition would not have been effective. In 1998, the first and third applicants lodged an application with the Constitutional Court for a review of the constitutionality of the relevant provisions of the Act. They argued, inter alia, that the impossibility of using the techniques which they required to conceive was a breach of their rights under art 8 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms 1950. The Constitutional Court ruled that, although the decision of spouses or a cohabiting couple to conceive a child and make use of medically-assisted procreation techniques to that end fell within the sphere of protection under art 8 and the impugned provisions of the Act interfered with the exercise of that freedom in so far as they limited the scope of permitted medical techniques of artificial procreation, that interference was justified. In the Constitutional Court’s view, the legislature had not overstepped the margin of appreciation afforded to member states when it established the permissibility of homologous methods as a rule and insemination using donor sperm as an exception. The applicants complained to the European Court of Human Rights, in particular, that the prohibition of heterologous artificial procreation techniques for IVF laid down in the Act violated their rights under art 8 of the Convention read alone and in conjunction with art 14 (providing that ‘[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’). The respondent state accepted that art 8 applied to the instant case and consequently did not dispute the applicability of art 14, but contended, inter alia, that the legislature had struck a fair balance in line with art 8; such a balance allowed for medically assisted procreation while at the same time providing for certain limits where the stage reached in medical and social development did not yet permit the legal authorisation of IVF with the sperm or ova of third persons. A Chamber of the First Section of the court held (by six votes to one) that there had been a violation of art 14 of the Convention read in conjunction with art 8 as regards the first and second applicants and (by five votes to two) a violation of those provisions as regards the third and fourth applicants, and (unanimously) that it was not necessary to examine the application also under art 8 alone ((2010) 28 BHRC 684). The case was referred to the Grand Chamber.
Held – (By a majority) The right of a couple to conceive a child and to make use of medically assisted procreation for that purpose was protected by art 8, as such a choice was an expression of private and family life. Article 8 therefore applied to the instant case. Although the object of art 8 was essentially that of protecting the individual against arbitrary interference by the public authorities, it did not merely compel the state to abstain from such interference. In addition to that primarily negative undertaking, there could be positive obligations inherent in an effective respect for private and family life. Those obligations might involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves. The boundaries between the state’s positive and negative obligations under art 8 did not lend themselves to precise definition. The applicable principles were nonetheless similar. In particular, in both instances regard was to be had to the fair balance to be
struck between the competing interests. In the instant case, although the legislation in question could be seen as raising an issue as to whether there existed a positive obligation on the state to permit certain forms of artificial procreation using either sperm or ova from a third party, the case would be approached as one involving an interference with the applicants’ right to avail themselves of techniques of artificial procreation as a result of the operation of the Act since they were in fact prevented from doing so by the operation of the law that they unsuccessfully sought to challenge before the domestic courts. Such interference would be in breach of art 8 unless it was in accordance with the law, pursued one or more legitimate aims, and was necessary in a democratic society in order to achieve the aim concerned. The measure at issue was provided for by law and it pursued the legitimate aim of protecting health or morals and protecting the rights and freedom of others. In order to determine whether the impugned measures were necessary in a democratic society, consideration had to be given to whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of art 8(2). The court’s task was not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating matters of artificial procreation. In regulating those issues the margin of appreciation to be afforded to the respondent state was a wide one since the use of IVF treatment gave rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments, and since the questions raised by the case touched on areas where there was no clear common ground among the member states. The state’s margin in principle extended both to its decision to intervene in the area and, once having intervened, to the detailed rules it set down in order to achieve a balance between the competing public and private interests. The central question in terms of art 8 was not whether a different solution might have been adopted by the legislature that would arguably have struck a fairer balance, but whether, in striking the balance at the point at which it did, the legislature exceeded the margin of appreciation afforded to it under that article. In the instant case, neither in respect of the prohibition of ovum donation for the purposes of artificial procreation nor in respect of the prohibition of sperm donation for IVF under the Act, had the legislature, at the relevant time, exceeded the margin of appreciation afforded it. It followed that there had been no breach of art 8 of the Convention. In the circumstances, the substance of the complaint under art 14 had been sufficiently taken into account in the examination of the complaint under art 8, which meant that there was no cause for a separate examination of the same facts from the standpoint of art 14 read in conjunction with art 8 (see paras 82, 87–92, 97, 106, 115–116, 120, below); X v UK[1997] 3 FCR 341, Odievre v France (2003) 14 BHRC 526, Evans v UK (2007) 22 BHRC 190, Dickson v UK (2007) 24 BHRC 19 and A v Ireland[2011] 3 FCR 244 considered.
Per curiam. The Convention has always been interpreted and applied in the light of current circumstances. Even if it finds no breach of art 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 (see para 118, below); Goodwin v UK[2002] 2 FCR 577 and Stafford v UK (2002) 13 BHRC 260 considered.
Cases citedA v Ireland[2011] 3 FCR 244, ECt HR.
Bensaid v UK (2001) 11 BHRC 297, ECt HR.
Goodwin v UK[2002] 2 FCR 577, [2002] 2 FLR 487, ECt HR.
Connors v UK (2004) 16 BHRC 639, ECt HR.
Dickson v UK (2007) 24 BHRC 19, ECt HR.
Dudgeon v UK (1981) 4 EHRR 149, [1981] ECHR 7525/76, ECt HR.
Evans v UK (2007) 22 BHRC 190, ECt HR.
Frette v France[2003] 2 FCR 39, [2002] ECHR 36515/97, ECt HR.
JM v UK[2010] 3 FCR 648, [2011] 1 FLR 491, ECt HR.
K v Finland[2001] 2 FCR 673, [2001] ECHR...
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