EHRM, 03-11-2011, nr. 57813/00

The applicants were born in 1966, 1962, 1971 and 1971 respectively and live in L. and R.

The first applicant is married to the second applicant and the third applicant to the fourth applicant.

The first applicant suffers from fallopian-tube-related infertility (eileiterbedingter Sterilität). She produces ova, but, due to her blocked fallopian tubes, these cannot pass to the uterus, so natural fertilisation is impossible. The second applicant, her husband, is infertile.

The third applicant suffers from agonadism (Gonadendysgenesie), which means that she does not produce ova at all. Thus she is completely infertile but has a fully developed uterus. The fourth applicant, her husband, in contrast to the second applicant, can produce sperm fit for procreation.

On 4 May 1998 the first and third applicants lodged an application (Individualantrag) with the Constitutional Court (Verfassungsgerichtshof) for a review of the constitutionality of section 3(1) and section 3(2) of the Artificial Procreation Act (Fortpflanzungsmedizingesetz — see paragraphs 27–34 below).

The applicants argued before the Constitutional Court that they were directly affected by the above provisions. The first applicant submitted that she could not conceive a child by natural means; thus the only way open to her and her husband would be in vitro fertilisation using sperm from a donor. That medical technique was, however, ruled out by section 3(1) and section 3(2) of the Artificial Procreation Act. The third applicant submitted that she was infertile. As she suffered from agonadism, she did not produce ova at all. Thus, the only way open to her of conceiving a child was to resort to a medical technique of artificial procreation referred to as heterologous embryo transfer, which would entail implanting into her uterus an embryo conceived with ova from a donor and sperm from the fourth applicant. However, that method was not allowed under the Artificial Procreation Act.

The first and third applicant argued before the Constitutional Court that the impossibility of using the above-mentioned medical techniques for medically assisted conception was a breach of their rights under Article 8 of the Convention. They also relied on Article 12 of the Convention and on Article 7 of the Federal Constitution, which guarantees equal treatment.

On 4 October 1999 the Constitutional Court held a public hearing in which the first applicant, assisted by counsel, participated.

On 14 October 1999 the Constitutional Court decided on the first and third applicants' request. The Constitutional Court found that their request was partly admissible in so far as the wording concerned their specific case. In this respect, it found that the provisions of section 3 of the Artificial Procreation Act, which prohibited the use of certain procreation techniques, was directly applicable to the applicants' case without it being necessary for a decision by a court or administrative authority to be taken.

As regards the merits of their complaints the Constitutional Court considered that Article 8 was applicable in the applicants' case. Although no case-law of the European Court of Human Rights existed on the matter, it was evident, in the Constitutional Court's view, that 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 Article 8.

The impugned provisions of the Artificial Procreation Act interfered with the exercise of this freedom in so far as they limited the scope of permitted medical techniques of artificial procreation. As for the justification for such an interference, the Constitutional Court observed that the legislature, when enacting the Artificial Procreation Act, had tried to find a solution by balancing the conflicting interests of human dignity, the right to procreation and the well-being of children. Thus, it had enacted as leading features of the legislation that, in principle, only homologous methods — such as using ova and sperm from the spouses or from the cohabiting couple itself — and methods which did not involve a particularly sophisticated technique and were not too far removed from natural means of conception would be allowed. The aim was 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 use of in vitro fertilisation as opposed to natural procreation raised serious issues as to the well-being of children thus conceived, their health and their rights, and also touched upon the ethical and moral values of society and entailed the risk of commercialisation and selective reproduction (Zuchtauswahl).

Applying the principle of proportionality under Article 8 § 2, however, such concerns could not lead to a total ban on all possible medically assisted procreation techniques, as the extent to which public interests were concerned depended essentially on whether a homologous technique (having recourse to the gametes of the couple) or heterologous technique (having recourse to gametes external to the couple) was used.

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 choices the legislature had made reflected the then current state of medical science and the consensus in society. It did not mean, however, that these criteria were not subject to developments which the legislature would have to take into account in the future.

The legislature had also not neglected the interests of men and women who had to avail themselves of artificial procreation techniques. Besides strictly homologous techniques it had accepted insemination using sperm from donors. Such a technique had been known and used for a long time and would not bring about unusual family relationships. Further, the use of these techniques was not restricted to married couples but also included cohabiting couples. However, the interests of the individuals concerned had to give way to the above-mentioned public interest when a child could not be conceived by having recourse to homologous techniques.

The Constitutional Court also found that for the legislature to prohibit heterologous techniques, while accepting as lawful only homologous techniques, was not in breach of the constitutional principle of equality which prohibits discrimination. The difference in treatment between the two techniques was justified because, as pointed out above, the same objections could not be raised against the homologous method as against the heterologous one. As a consequence, the legislature was not bound to apply strictly identical regulations to both. Also, the fact that insemination in vivo with donor sperm was allowed while ovum donation was not, did not amount to discrimination since sperm donation was not considered to give rise to a risk of creating unusual relationships which might adversely affect the well-being of a future child.

Since the impugned provisions of the Artificial Procreation Act were in line with Article 8 of the Convention and the principle of equality under the Federal Constitution, there had also been no breach of Article 12 of the Convention.

This decision was served on the first and third applicants' lawyer on 8 November 1999.

The Government argued, as they had done before the Chamber, that the second and fourth applicants, the husbands of the first and third applicant respectively, had failed to exhaust domestic remedies as required by Article 35 of the Convention because they had failed to lodge themselves an application with the Constitutional Court for review of the constitutionality of section 3 of the Artificial Procreation Act.

This was disputed by the applicants, who referred to the decision on admissibility of 15 November 2007 in which the Court rejected the Government's objection of non-exhaustion and which, in their view, settled this matter definitively.

The Grand Chamber observes that the chamber rejected the Government's objection of non-exhaustion as regards the second and fourth applicant in its decision on admissibility of 15 November 2007. In that decision it stated as follows:

The Grand Chamber does not see any reason to come to a different conclusion from the Chamber. Accordingly, the Government's preliminary objection must be rejected.

The applicants complained that the prohibition of heterologous artificial procreation techniques for in vitro fertilisation laid down by section 3(1) and 3(2) of the Artificial Procreation Act had violated their rights under Article 8 of the Convention.

Article 8 of the Convention, in so far as relevant, provides:

The applicants complained that the prohibition of heterologous artificial procreation techniques for in vitro fertilisation laid down by section 3(1) and section 3(2) of the Artificial Procreation Act had violated their rights under Article 14 read in conjunction with Article 8.

In the circumstances of the present case the Court considers that the substance of this complaint has been sufficiently taken into account in the above examination of the applicants' complaints under Article 8 of the Convention. It follows that there is no cause for a separate examination of the same facts from the standpoint of Article 14 read in conjunction with Article 8 of the Convention.

Regarding this particularly sensitive and delicate question of medically assisted procreation (MAP), we do not share the conclusion reached by the majority that there has not been a violation of Article 8 of the Convention in respect of the four applicants.

In the present case the first couple were not allowed to use donor eggs and the second couple were not allowed to use donor sperm, in accordance with the Artificial Procreation Act of 1992 which provides that only gametes from spouses (or from persons living in a marital relationship) can be used, thus prohibiting MAP with a third-party donor.

It is important to note at the outset, however, that the Grand Chamber, like the Chamber, confirms and extends the applicability of Article 8 of the Convention to the present situation. Indeed, since the Evans v. the United Kingdom judgment of 10 April 2007 (Grand Chamber), our Court has accepted that the concept of private life, within the meaning of Article 8 of the Convention, covers the right to respect for the decision to have or not to have a child (see § 71). Moreover, in the Dickson v. the United Kingdom judgment of 4 December 2007 (Grand Chamber), which concerned the possibility of artificial insemination facilities, the Court concluded that Article 8 was applicable on the ground that the procreation technique in question concerned the private and family life of the persons concerned, specifying that that notion incorporated the right to respect for their decision to become genetic parents (see § 66). In the instant case the Court states 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’ (see paragraph 82 of the judgment). That acknowledgment is all the more important in that, unlike the Chamber, the Grand Chamber subsequently limits its examination to Article 8 taken alone, considering that the substance of the applicants' complaints falls within that Article. Article 8 of the Convention thus appears to play an enhanced role now regarding questions related to procreation and reproduction.

In an area undergoing profound changes, both from a scientific and medical point of view and in social and ethical terms, one feature of the present case is the time factor. The decision of the Austrian Constitutional Court dismissing the application lodged by the applicants was adopted on 14 October 1999. In that decision the court observed itself that ‘the choices the legislature [of 1992] had made reflected the then current state of medical science and the consensus in society. It did not mean, however, that these criteria were not subject to developments which the legislature would have to take into account in the future’ (see paragraph 22 of the judgment). The application was lodged with our Court on 8 May 2000 and the Chamber judgment was adopted on 1 April 2010. In these particular circumstances, we find it artificial for the Court to confine its examination to the situation as it existed when the Constitutional Court gave judgment in 1999 and in the context at the time, thus deliberately depriving a Grand Chamber judgment, delivered at the end of 2011, of any real substance. Admittedly, the judgment takes care to specify that ‘the Court is not prevented from having regard to subsequent developments in making its assessment’ (see paragraph 84 of the judgment), but that specification remains a dead letter in actual fact.

We find this approach, for which there is no decisive support in the Court's case-law — in fact quite the contrary (see, inter alia, Yaşa v. Turkey, 2 September 1998, § 94, Reports of Judgments and Decisions 1998-VI, and Maslov v. Austria [GC], no. 1638/03, §§ 91 and 92, 23 June 2008) — all the more problematical in that the main thrust of the Grand Chamber's reasoning is based on the European consensus regarding gamete donation (eggs and sperm) which, as we well know, has evolved considerably (see paragraphs 35 et seq. of the judgment). Moreover, the judgment clearly acknowledges this point: ‘From the material at the Court's disposal, it appears that since the Constitutional Court's decision in the present case many developments in medical science have taken place to which a number of Contracting States have responded in their legislation. Such changes might therefore have repercussions on the Court's assessment of the facts’ (see paragraph 84 of the judgment). They did not subsequently have any repercussions, though.

More specifically, and this is a weighty factor in our view, the majority expressly notes that the Austrian parliament has still not, to date, undertaken a thorough assessment of the rules governing artificial procreation taking into account the dynamic developments in science and society in this area, despite the fact that the Constitutional Court — back in 1999 — had said that the criteria were subject to developments which the legislature would have to take into account (see paragraph 117 of the judgment). Ten years have passed, however, and this has still not been followed up in any way. Nevertheless, the Grand Chamber considers that the legislature has complied with the principle of proportionality under Article 8 § 2 of the Convention and confines itself to stating that the area ‘needs to be kept under review by the Contracting States’ (see paragraph 118 of the judgment).

Even it were acceptable in 2011 to have regard exclusively to the situation existing in 1999, it would still be necessary for the European consensus as it existed at the time to be carefully ascertained in order to determine the breadth of the margin of appreciation because ‘[w]here a particularly important facet of an individual's existence or identity is at stake, the margin allowed to the State will normally be restricted’ (see paragraph 95 of the judgment). Accordingly, for example, in the Connors v. the United Kingdom judgment of 27 May 2004 the Court reiterated that the margin ‘will tend to be narrower where the right at stake is crucial to the individual's effective enjoyment of ‘intimate’ or key rights’ (see § 82), which is clearly the case here.

Even according to the comparative study on medically assisted procreation undertaken by the Council of Europe in 39 countries in 1998, ovum donation was prohibited in only eight countries at the time and sperm donation in five countries. Despite that, the Court considers that ‘the consensus is not, however, 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’ (see paragraph 96 of the judgment). The Court thus takes 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 consensus1. are pushed to their limit here, engendering great legal uncertainty.

It is significant that in a report of a meeting on ‘Medical, ethical and social aspects of assisted reproduction’ organised by the World Health Organisation as far back as 2001, the authors point out that ‘[i]t is commonly accepted that infertility 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’2.. Today, ‘society has to cope with new challenges brought to the forefront by [a] technological revolution [in the field of assisted reproduction] and its social implications’3.. In this respect, it seems to us important to recall Article 12 § 1 and Article 15 § 1 b) of the International Covenant on Economic, Social and Cultural Rights (1966) which recognizes the right of everyone to enjoy the benefits of scientific progress and its applications, and the right of everyone to enjoy the highest standard of physical and mental health. Ultimately, what is at stake here is not a question of choice between different techniques but, more fundamentally, a restriction on access to heterologous in vitro fertilisation constituting denial of access to available treatment.

Despite the fact that the data at the relevant time mainly support the opposite approach, and without taking into consideration the developments that have taken place in the meantime, the Grand Chamber unhesitatingly affirms that there is not yet ‘clear common ground between the member States’ and that the margin of appreciation to be afforded to the respondent State ‘must be a wide one’, allowing it to reconcile social realities with its positions of principle. That reasoning implies that these factors 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 Convention4..

Together with the European consensus, the margin of appreciation is thus the other pillar of the Grand Chamber's reasoning. This is sometimes described as wide or broad (see paragraph 97 of the judgment), and is sometimes referred to without any qualifying adjective (see paragraphs 106 and 115 of the judgment), thereby indicating a certain amount of hesitation as to the correct weight to be given to that concept and to the seriousness of the limitation in question. The result is that the Court's position is unclear and uncertain, or even opaque. Whilst acknowledging that the legislature could have provided acceptable, perhaps more balanced, legal solutions to the difficulties associated with egg and sperm donation, the Grand Chamber confines itself to examining whether, by adopting the impugned solution, it exceeded its margin of appreciation (see paragraph 106 of the judgment). In our opinion, this is not the issue here. On the one hand, where the States have authorised MAP, the Court has to verify whether the benefit thereof is granted in accordance with their obligations under the Convention and whether they have chosen the means that impinge the least on rights and freedoms. The margin of appreciation goes hand in hand with European supervision. On the other hand, in a case as sensitive as this one, the Court should not use the margin of appreciation as a ‘pragmatic substitute for a thought-out approach to the problem of proper scope of review’5.. Ultimately, through the combined effect of the European consensus and the margin of appreciation, the Court has chosen a minimum — or even minimalist — approach that is hardly likely to enlighten the national courts.

One of the arguments advanced by the Government and accepted by the majority is particularly problematical in our view, namely, 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 and that in the event of successful treatment the Civil Code contains clear rules on paternity and maternity that respect the wishes of the parents (see paragraph 114 of the judgment)6..

In our view, the argument that couples can go abroad (without taking into account the potential practical difficulties or the costs that may be involved) does not address the real question, which is that of interference with the applicants' private life as a result of the absolute prohibition in Austria; it totally fails to satisfy the requirements of the Convention regarding the applicants' right to compliance with Article 8. Furthermore, by endorsing the Government's reasoning according to which, in the event that treatment abroad is successful, the paternity and maternity of the child will be governed by the Civil Code in accordance with the parents' wishes, the Grand Chamber considerably weakens the strength of the arguments based on ‘the unease existing among large sections of society as to the role and possibilities of modern reproductive medicine’, particularly concerning the creation of atypical family relations (see paragraph 113 of the judgment). Lastly, if the concern for the child's best interests — allegedly endangered by recourse to prohibited means of reproduction — disappear as a result of crossing the border, the same is true of the concerns relating to the mother's health referred to several times by the respondent Government to justify the prohibition.

For all of the foregoing reasons, we conclude that there has in this case been a violation of Article 8 of the Convention in respect of the four applicants.