ON 3 November 2011, the Grand Chamber of the European Court of Human Rights somewhat surprisingly overturned the Chamber decision of 1 April 2010 in S.H. and others v Austria (Application no. 57813/00, (2011) 52 E.H.R.R. 6). In the case, two married couples claimed the right to access to specific medically assisted procreation techniques which Austrian law denied to them. Even though this denial meant that the applicants could not have children to which at least one of them was genetically related, the Grand Chamber held that there was no violation of the right to respect for private and family life in Article 8 ECHR and no prohibited discrimination (Article 14 in conjunction with Article 8). The law in question was deemed to be within the margin of appreciation afforded to the Contracting States in this matter. The case is nevertheless an important milestone – or, perhaps more precisely, a stepping stone – in the development of this area of law which, due to advances in medical science and changes in social attitudes, is evolving rapidly.
The decision significantly extends the applicability of Article 8 in matters of procreation and reproduction. The Grand Chamber not only confirmed its position first taken in Evans v United Kingdom (Application no. 6339/05, 10 April 2007, (2007) 43 E.H.R.R. 21) that the right to respect for private life includes the decision to have or not have a child. It also confirmed that this includes the right to become a genetic parent of a child, as was first held in Dickson v United Kingdom (Application no. 44362/04, 4 December 2007, (2007) 44 E.H.R.R. 41). But in the case at hand, the Grand Chamber went even further and stated 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”, at [82]. Hence the right to respect for private and family life now also comprises of a right of access to medically assisted procreation.
In the end, however, this did not help the applicants in the case. Without going into the medical details, for the first couple in the case only an in vitro fertilisation of the ova of the wife with donor sperm (the husband was infertile) would allow them to have a child that would be genetically related to her. The second couple required donated ova (as the wife was infertile but could carry a child) to be fertilised with the husband's sperm so that the child would at least be genetically related to him. However, Austrian law (unlike the United Kingdom's Human Fertilisation and Embryology Acts 1990 and 2008) is rather restrictive when it comes to heterologous medically assisted reproduction, i.e. the usage of the donated gametes of a third party. Donation and usage of ova (which the second couple required) is legally prohibited under any circumstances. The use of donated sperm is only permissible in “exceptional” cases, namely when the man is infertile, and even then only for artificial insemination and not in vitro fertilisation – and it was the latter that the first couple required.
The Austrian Government (supported among others by Germany and Italy) justified the existing limitations upon medically assisted procreation by stating that the aim of the provisions was to avoid children forming “unusual family and personal relations” and that therefore only homologous methods – i.e. using ova and sperm from the spouses or from the cohabiting couple themselves – were permitted without restrictions. Using donated ova would bear the risk that a child potentially had “more than one biological mother” (the gestational and the genetic mother). A similar argument was made with regard to sperm donation, and the one exception to this was explained, rather unconvincingly, as being justified on the ground that these were “methods which did not involve a particularly sophisticated technique and were not too far removed from natural means of conception”, at [19]. The final arguments were that the prohibitions also prevented exploitation of vulnerable women who might feel pressurised to donate ova for economic reasons, as well as the danger of selective reproduction (i.e. choosing ova and sperm with specific genetic information).
In its decision of 1 April 2010, the Chamber, and the dissenting judges in the Grand Chamber decision, quite rightly found this very unconvincing, particularly since these matters could all have been regulated by law in Austria (as indeed they are in the United Kingdom and a number of other jurisdictions); moreover, divergence between genetic and legal parenthood was already permitted even in Austria in the “exceptional” case, and of course in cases of adoption.
Yet the Grand Chamber decided otherwise. While acknowledging that “there is now a clear trend in the legislation of the Contracting States towards allowing gamete donation for the purpose of in vitro fertilisation, which reflects an emerging European consensus”, at [96], the majority in the Grand Chamber found that Austrian law fell within the margin of appreciation afforded to the Contracting States because of the nature of the sensitive moral and ethical issues involved. That was so because the emerging consensus 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”, at [96].
In coming to this conclusion, the Grand Chamber appeared to look at the point in time when the legislation was passed in 1992 as “the relevant time”, at [115]. This is an inexplicable and unnecessary departure from previous case law. As the dissenting judges rightly point out, it deprives the decision of any real substance because it ignores the significant developments of the last 20 years. Indeed, the Grand Chamber itself, referring to Rees v United Kingdom (Application no. 9532/81, 17 October 1986, (1987) 9 E.H.R.R. 56) later “reiterates that the Convention has always been interpreted and applied in the light of current circumstances” (at [118], emphasis added) – which directly contradicts the approach taken only three paragraphs before. It is therefore to be presumed that in the future the Court will revert to its previous stance and it is to be hoped that the approach in S.H. was thus an aberration.
Another oddity of the decision is that the Grand Chamber pointed out that it was open to the applicants to go to other jurisdictions to receive the treatment they desired, and that the results of this (i.e. the child) would be recognised in Austria without much ado, at [114]. It is difficult to see how this argument can support the Grand Chamber's decision in any way. Not only would taking this path only be open to some couples, as it would require significant financial resources, it also is nonsensical to hold that a right is protected because it can be exercised elsewhere.
In any event, even though the Austrian legislation was not found to be in violation of the ECHR, the Grand Chamber attached a clear warning to this finding (as indeed already had the Austrian Constitutional Court in its 1999 decision in the matter). It icily observed “that the Austrian parliament has not, until now, undertaken a thorough assessment of the rules governing artificial procreation, taking into account the dynamic developments in science and society” (at [117]) and that the “Government have given no indication that the Austrian authorities have actually followed up this aspect of the ruling of the Constitutional Court”, at [118]. It is here that the Grand Chamber expressly refers to the need for the dynamic interpretation of the ECHR and Rees, and repeats that the Contracting States must keep this area of law under review. The tone in this passage is very similar to the equivalent warning given by the Court in Rees – which was disregarded by the United Kingdom Government and therefore ultimately led to the decision in Goodwin v United Kingdom (Application no. 28957/95, 11 July 2002, (2002) 35 E.H.R.R. 18) in which the Court held that the United Kingdom was now in breach of the ECHR with regard to the change of legal gender and subsequent right to marry, as it failed properly to monitor and act upon scientific and societal developments (see especially at [92]–[93]). Goodwin was therefore also cited in the present context by the Grand Chamber, to make absolutely clear to the Austrian Government and all Contracting States that their margin of appreciation in the area of medically assisted procreation is rapidly shrinking.
