Ban on fertility treatment does not breach Convention, says Strasbourg

10 November 2011 by Rosalind English

S.H. and Others v. Austria (Application no. 57813/00), 3 November 2011 – read judgment

The Grand Chamber of the Strasbourg Court has rejected complaints from two infertile couples that the Austrian prohibition on using medically-assisted procreation techniques did not breach their right to respect for family life under Article 8 or the right to found a family under Article 12.  The choices the legislature had made reflected the then current state of medical science and the consensus in society and it had therefore not overstepped its (wide) margin of appreciation in this area.

This refusal to allow infertile couples the protection of the Convention against restrictive state legislation comes as some surprise in the light of Strasbourg’s readiness to insist that governments should allow prisoners access to artificial insemination (AI): Dickson v United Kingdom (2006).  Why should infertile couples be denied the anxious scrutiny accorded to those behind bars? This giving with one hand and taking with another simply confirms the cynic’s view of the court as being deeply partisan in its approach. And it is far from clear why governments should be allowed such leeway in an area so central to the ECHR’s concerns: the Court itself has said that where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State would normally be severely restricted. The matter of procreation and the genetic relatedness of one’s offspring must surely belong to this “core” area of life.

The following summary is based on the Court’s press release:

The applicants are two married couples who live in Austria. Suffering from infertility, they wished to use medically-assisted procreation techniques which are not allowed under Austrian law.

S.H. produces eggs, but suffers from blocked fallopian tubes, which means that she cannot get pregnant naturally, and her husband D.H. is infertile. Owing to their medical conditions, only in vitro fertilisation with the use of sperm from a donor would allow them to have a child of whom one of them is the genetic parent. H.E.-G. suffers from agonadism, which means that she does not produce eggs, while her husband M.G. can produce sperm fit for procreation. Only in vitro fertilisation with the use of ova from a donor would allow them to have a child of whom one of them is the genetic parent. However, both of these possibilities are ruled out by the Austrian Artificial Procreation Act. In effect, the first couple were not allowed to use donor eggs and the second couple were not allowed to use donor sperm.

At the same time, Austrian law allows other assisted procreation techniques, in particular in vitro fertilisation with ova and sperm from the spouses or cohabitating partners themselves (homologous methods). It is the third party donation element that is found objectionable.

In 1998 the Austrian Constitutional Court ruled that any interference with the applicants’ right to respect for family life was justified, as the provisions were to avoid the forming of unusual personal relations, such as a child having more than one biological mother (a genetic one and one carrying the child). They were also to avoid the risk of exploitation of women, as pressure might be put on a woman from an economically disadvantaged background to donate ova, who otherwise would not be in a position to afford in vitro fertilisation in order to have a child of her own.

Before the Strasbourg Court the applicants complained that the prohibition of sperm and ova donation for in vitro fertilisation violated their right to respect for family life under Article 8, and that the difference in treatment compared to couples who wished to use medically-assisted procreation techniques, but did not need to use ova or sperm donation for in vitro fertilisation, amounted to a discriminatory treatment.

The application was initially successful. In April 2010 the First Chamber found that the ban was too draconian;  the risks of ovum donation, such as the risk of exploitation of women and the creation of unusual relationships by splitting motherhood between a genetic mother and a biological mother, were problems which could be overcome with appropriate safeguards in the legislation. The Chamber therefore concluded that there had been a violation of Article 14 in conjunction with Article 8.

In October of that year, the case was referred to the Grand Chamber at the Austrian Government’s request. A Grand Chamber hearing took place on 23 February 2011.

The Grand Chamber’s Ruling

The Court approached the case as one involving an interference by the State with the applicants’ right to respect for their family life.  It was undisputed that the applicants had been prevented from using certain techniques of artificial procreation by the application of the law. The question was whether this law was within the state’s margin of appreciation in regulating these matters.

The court took the view that emerging European consensus was not based on “settled principles”, but  reflected a stage of development within a particularly dynamic field of law and thus did not decisively narrow the margin of appreciation of the State. The Court therefore considered that the margin of appreciation to be given to Austria had to be a wide one, given that the use of in vitro fertilisation treatment gave rise to “sensitive ethical issues” against a background of fast-moving scientific developments.

The Court observed that the Austrian legislature had not completely ruled out artificial procreation, as it allowed the use of homologous techniques. The Court could not overlook the fact that the splitting of motherhood between a genetic mother and the one carrying the child differed significantly from adoptive parent-child relations. The legislature had thus been guided, in particular, by the aim of maintaining a basic principle of civil law, that the identity of the mother is always certain, and of avoiding the possibility that two women could claim to be the biological mother of the same child.

The Court concluded that Austria had not, at the relevant time, exceeded the margin of appreciation afforded to it, neither as regards the prohibition of ovum donation for the purposes of artificial procreation nor as regards the prohibition of sperm donation for in vitro fertilisation. There had accordingly been no violation of Article 8 in the applicants’ case. There was no separate consideration of the discrimination argument under Article 14.

Judge de Gaetano expressed a separate opinion. Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria expressed a joint dissenting opinion.

Comment

It is difficult to see why Strasbourg insists on according this “wide margin of appreciation” to Council of Europe countries in these medical matters. Absent religious considerations – and the Court is the watchdog and enforcer of a secular code, not a God-given one – its task is to ensure that states do not meddle with matters of personal autonomy, including procreation. The Court would be very quick to slap down any efforts by governments to control population growth by imposing, say, a maximum number of children enforced by fines or taxation.  And yet it exercises uncharacteristic restraint in the face of a similarly meddlesome regulation in the interests of – what, exactly? The child who is a product of both a biological and a genetic mother will be no more mixed up than a child of a civil partnership of two same-sex mothers, or fathers; what the Austrian government refers to as “unusual relationships” are part of the weft and warp of modern family life. This argument simply does not prevail in contemporary society.

The total ban on ovum donation is particularly hard-hitting, excluding all women who are unable to produce their own eggs from having children genetically related to the woman’s partner or husband. A 1998 survey showed that ovum donation was prohibited in only eight countries at the time and sperm donation in five countries at the time. Out of 39 Council of Europe states, that is a small proportion. Since then  various countries have reviewed their legislation in the light of  medical research and advance in this area and have removed these prohibitions: in Denmark, France and Sweden sperm and ovum donation, which was previously prohibited, is now allowed , and  in Finland, where medically assisted procreation is also regulated by law, sperm and ova donation are permitted. And yet the Austrian government is let off the hook, apart from a limp statement  from the Court 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

What does this mean? As far as Austria is concerned, it is completely unforceable since on the main issues the Court has exonerated the respondent from exceeding its margin of appreciation and breaching Article 8.

The “Time Factor”

In the  twelve years that has elapsed since the Austrian Constitutional Court considered the applicants’ case social views of the acceptability and ethics of  medical reproductive techniques have evolved dramatically. One only has to remember the  fear and loathing that greeted news of the first “test tube baby” in this country to remind oneself of the pace of developments in this field (in 1978 Pope John Paul 1 expressed concerns about the possibility that artificial insemination could lead to women being used as “baby factories”).  The provenance of such children is barely a matter of comment in present times, let alone disapproval.  For this reason, the dissenters in this case are puzzled that the majority have failed to take this “time factor” in to account. Indeed, in their view, the Court seems have taken “the unprecedented step of conferring a new dimension on the European consensus, and applies a particularly low threshold to it, “thus potentially extending the States’ margin of appreciation beyond limits.

The current climate is probably conducive to such a backward step. The differences in the Court’s approach to the determinative value of the European consensus and a somewhat lax approach to the objective indicia used to determine consensus are pushed to their limit here, engendering great legal uncertainty.

That reasoning, the dissenters suggest,  implies that the religious and traditional objections must now take precedence over the European consensus, “which is a dangerous departure from the Court’s case-law considering that one of the Court’s tasks is precisely to contribute to harmonising across Europe the rights guaranteed by the Convention.” The result is that the Court’s position is – not for the first time – “unclear and uncertain, or even opaque.”

Much is made of the limitations of Articles 8 and 12 in the field of reproductive technology and no-one seriously argues now that either provision provides an express right to procreate. While there is no doubt that a couple’s decision to conceive a child is a decision which pertains to the private and family life of that couple (and, in the context of Article 12, to the couple’s right to found a family), the Court insists that neither Article 8 nor Article 12 can be construed as granting a right to conceive a child at any cost. Why then did the Court see fit to insist that signatory states provide artificial procreational facilities for prisoners? Article 8 seems to sprout a completely different set of obligations in different circumstances. Once past the prison door, for example, there is apparently a “positive obligation” under this provision to facilitate reproduction; where

a particularly important facet of an individual’s existence or identity is at stake (such as the choice to become a genetic parent), the margin of appreciation accorded to a State will in general be restricted. [Dickson, para 78]

Indeed,  Judge Tulkens et al remind us that the Grand Chamber in Dickson concluded that Article 8 was applicable on the ground that the notion incorporated the right to respect for their decision to become genetic parents (see para 66). Article 8 of the Convention thus appears to play “an enhanced role now regarding questions related to procreation and reproduction.”

Procreative tourism, “split” mothers and other dilemmas…

There are other unfortunate consequences of this continuing ban and the failure of the Court to strike it down. The Court acknowledged  that there is no prohibition under Austrian law on going abroad to seek treatment of infertility that uses artificial procreation techniques not allowed in Austria. As one of the intervening parties (an infertility campaign group) pointed out, a negative side-effect of the ban meant that couples seeking infertility treatment abroad were exposed to the risk of low quality standards and of suffering from considerable financial and emotional stress.  Alternatively, the ban means that only couples with the wherewithal to travel and pay for this treatment abroad can get round the prohibition, leaving their less fortunate compatriots stuck with no hope of creating a family. And as the dissenting judges laconically point out, the Court’s implicit approval of this situation – as rendering the ban proportionate – suggests that their  concern for the child’s best interests – allegedly endangered by recourse to prohibited means of reproduction – simply disappears as a result of crossing the border.

Infertility is no small issue. According to a WHO report,  it affects more than 80 million people worldwide.

In general, one in ten couples experiences primary or secondary infertility” and “it is a central issue in the lives of the individuals who suffer from it. It is a source of social and psychological suffering for both men and women and can place great pressures on the relationship within the couple

Perhaps this is the nub of the problem. Infertility and the solutions to it offered by medical science is too big a question for Strasbourg to consider. Instead, it fiddles at the margins, with prisoner rights and other vague extensions to Article 8 so that it can interfere with signatory states’ management of border controls. But it does not appear to be interested in squaring up to the more fundamental challenges and social implications of new developments in medical technology, both at the beginning and  at the end of life.

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