EHRM, 01-04-2010, nr. 57813/00

The third applicant is completely infertile and does not produce ova at all while her husband, the fourth applicant, can produce sperm fit for procreation. It is not in dispute that owing to their medical conditions only in vitro fertilisation with the use of ova from a donor would allow the applicant couple to fulfil their wish for a child of which at least one of the applicants is the genetic parent. However the prohibition of heterologous artificial procreation techniques for in vitro fertilisation laid down by section 3(1) of the Artificial Procreation Act, which prohibits sperm donation rules out this possibility. There is no exception to this rule.

The Court has established in its case-law that, in order for an issue to arise under Article 14, there must be a difference in the treatment of persons in relevantly similar situations (D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007). Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, §§ 51–52, ECHR 2006-VI; Burden, cited above, § 60).

Thus, the Court has to examine whether the difference in treatment between the third and fourth applicants and a couple which, for fulfilling its wish for a child may make use of artificial procreation techniques without resorting to ova donation, has an objective and reasonable justification, that is, if it does pursue a legitimate aim or if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

The Government argued that the prohibition of ova donation for in vitro fertilisation adopted by the Austrian legislature pursued a legitimate aim and was proportionate. In their view the Austrian legislature struck a fair balance between the public and private interests involved. They argue that the legislature had to set certain limits on the possibilities offered by the medical techniques of artificial procreation because it had to take account of the morally and ethically sensitive nature and unease existing among large sections of society as to the role and possibilities of modern reproductive medicine.

The Court considers that concerns based on moral considerations or on social acceptability are not in themselves sufficient reasons for a complete ban on a specific artificial procreation technique such as ova donation. Such reasons may be particularly weighty at the stage of deciding whether or not to allow artificial procreation in general, and the Court would emphasise that there is no obligation on a State to enact legislation of the kind and to allow artificial procreation. However, once the decision has been taken to allow artificial procreation and notwithstanding the wide margin of appreciation afforded to the Contracting States, the legal framework devised for this purpose must be shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention.

The Government argued further that medically advanced techniques of artificial procreation such as in vitro fertilisation carried the inherent risk of not being employed only for therapeutic purposes but for other objectives such as the ‘selection’ of children; in vitro fertilisation posed such a risk. In addition, they submitted that there was a risk that ova donation might lead to the exploitation and humiliation of women, in particular from an economically disadvantaged background, as pressure might be put on a woman to donate who otherwise would not be in a position to afford an in vitro fertilisation in order to fulfil her own wish for a child.

The Court considers that the risks associated with new techniques in a sensitive field like medically assisted procreation must be taken seriously and that it is in the first place for the domestic legislator to assess these risks after carefully weighing the different public and private interests involved and the dangers which might be faced. However, a complete ban on the medical technique at issue would not be proportionate unless, after careful reflection, it was deemed to be the only means of effectively preventing serious repercussions. In the present case the Court is not persuaded that a complete ban was the only means at the disposal of the Austrian legislature. Given that the Artificial Procreation Act reserves this kind of intervention to specialised medical doctors, who have particular knowledge and experience in this field and are themselves bound by the ethical rules of their profession, and that the Act provides for further safeguards in order to minimise the risk, the Court finds that the prohibition of ova and sperm donation for in vitro fertilisation cannot be considered the only or the least intrusive means of achieving the aim pursued.

As regards the argument of risk of exploitation of women and abuse of these techniques, the Court considers that this is an argument which does not specifically concern the procreation techniques at issue but seems to be directed against artificial procreation in general. Furthermore, potential abuse, which undoubtedly has to be combated, is not a sufficient reason for prohibiting a specific procreation technique as a whole, if there exists the possibility to regulate its use and devise safeguards against abuse. In this respect the Court observes that under Austrian law remuneration of ova and sperm donation is prohibited by law.

At the hearing the Government also pointed out that obtaining ova for the purpose of donation was a risky and serious medical intervention which had serious repercussions for the donor. The Court appreciates that the Austrian legislature makes an effort to avoid unnecessary health risks but it notes in the first place that in case of homologous in vitro fertilisation the risk incurred by the woman from whom the ova are taken must be the same and this medical intervention is one allowed by the Artificial Procreation Act. In so far as the argument is linked to those concerning the risk of an abuse of ova donation or its commercialisation, the Court considers that the arguments given above are also valid in this context.

The Government also submitted that in vitro fertilisation raised the question of unusual relationships in which the social circumstances deviated from the biological ones, namely the division of motherhood into a biological aspect and the aspect of ‘carrying the child’ and perhaps also a social aspect.

The Court observes that, according to the Constitutional Court's decision of 14 October 1999, the Austrian legislator was guided by the idea that medically assisted procreation should take place similarly to natural procreation, in particular that the basic principle of civil law — mater semper certa est, pater est quem nuptiae demonstrant — should be maintained by avoiding the possibility that two persons could claim to be the biological mother of one and the same child and to avoid disputes between a biological and a genetic mother in the wider sense.

The aim of maintaining legal certainty in the field of family law by keeping a long-standing principle of this field of law as one of its basic features certainly has its merits. Nevertheless, unusual family relations in a broad sense are well known to the legal orders of the Contracting States. Family relations which do not follow the typical parent-child relationship based on a direct biological link, are nothing new and have already existed in the past, since the institution of adoption, which creates a family relationship between persons which is not based on descent but on contract, for the purpose of supplementing or replacing biological family relations. From this matter of common knowledge the Court would conclude that there are no insurmountable obstacles to bringing family relations which would result from a successful use of the artificial procreation techniques at issue into the general framework of family law and other related fields of law.

The Government relied on a further argument militating against the permission of ova and sperm donation for in vitro fertilisation, namely that children had a legitimate interest in being informed about their actual descent, which, with donated sperm and ova, would in most cases be impossible as the actual parentage of a child was not revealed in the births, marriages and deaths register.

The Court is not persuaded by this argument either. In this respect it reiterates that respect for private life requires that everyone should be able to establish details of their identity as individual human beings and that an individual's entitlement to such information is of importance because of its formative implications for his or her personality (see, for example, Mikulić v. Croatia, no. 53176/99, §§ 53–54, ECHR 2002-I, and Gaskin v. the United Kingdom, judgment of 7 July 1989, Series A no. 160, p. 16, §§ 36–37, 39). This includes obtaining information necessary to discover the truth concerning important aspects of one's personal identity, such as the identity of one's parents (see Jäggi v. Switzerland, no. 58757/00, § 25, ECHR 2006-…, and Odièvre v. France [GC], no. 42326/98, § 29, ECHR 2003-III).

However, such a right is not an absolute one. In the case of Odièvre, cited above, which concerned anonymous birth and the impossibility for the applicant to obtain information about her biological parents, the Court found no breach of Article 8 of the Convention because the French legislator had achieved a proper balance between the public and private interests involved (see Odièvre, cited above, § 49). The Court therefore considers that the Austrian legislator could also find an appropriate and properly balanced solution between competing interests of donors requesting anonymity and any legitimate interest in obtaining information of a child conceived through artificial procreation with donated ova or sperm.

In conclusion the Court finds that the Government have not submitted a reasonable and objective justification for the difference in treatment between the third and fourth applicants, who are prevented by the prohibition of ova donation for artificial procreation under Section 3 of the Artificial Procreation Act from fulfilling their wish for a child, and a couple which may make use of artificial procreation techniques without resorting to ova donation. Accordingly, there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 as regards the third and fourth applicants.

The first applicant suffers from fallopian-tube-related infertility and the second applicant, her husband, is also infertile. It is not in dispute that owing to their medical conditions only in vitro fertilisation with the use of sperm from a donor would allow the applicant couple to fulfil their wish for a child of which at least one of the applicants is the genetic parent.

However the prohibition of heterologous artificial procreation techniques for in vitro fertilisation laid down by section 3(1) of the Artificial Procreation Act, which, in the circumstances of the first and second applicant, rules out sperm donation excludes this possibility. At the same time section 3 (2) of that Act allows sperm donation for in vivo fertilisation.

Therefore, the Court has to examine whether the difference in treatment between the first and second applicants who, for fulfilling their wish for a child could only resort to sperm donation for in vitro fertilisation and a couple which lawfully may make use of sperm donation for in vivo fertilisation, has an objective and reasonable justification, that is, if it does pursue a legitimate aim or if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

The Court observes at the outset that this artificial procreation technique combines two techniques which taken alone are allowed under the Artificial Procreation Act, namely in vitro fertilisation with the gametes of the couple on the one and sperm donation on the other hand. Thus, a prohibition of the combination of these lawful techniques requires, in the Court's view, particularly persuasive arguments by the Government.

The Court considers that the various arguments advanced by the Government in order to justify the prohibition of ova donation are of little relevance for the examination of the prohibition at issue. Some relate to concerns against artificial procreation in general, while there is no complete ban under Austrian law. Some, like preventing the exploitation of women in vulnerable situations, limiting potential health risks for ova donors and preventing the creation of unusual family relations because of split motherhood simply do not apply. Some, like the risk of eugenic selection and problems stemming from the legitimate interest of children conceived through gamete donation to be informed of their actual descent, are directed against sperm donation, which, however, is allowed for the purpose of in vivo fertilisation.

In justifying the prohibition of sperm donation the Government has submitted a further argument. The reasons given for justifying this difference in treatment between in vitro fertilisation and artificial insemination were that the latter technique had already been in use for a considerable time when the Artificial Procreation Act entered into force and, because it was easy to handle and did not necessarily require the assistance of a trained medical surgeon, compliance with a prohibition would have been impossible to monitor.

It must be remembered that the Convention is designed to ‘guarantee not rights that are theoretical or illusory but rights that are practical and effective’ (see, inter alia, Folgerø and Others v. Norway [GC], no. 15472/02, § 100, ECHR 2007-…, and Salduz v. Turkey [GC], no. 36391/02, § 51, 27 November 2008). The Court must therefore take into account the effectiveness of a given instance of interference when assessing whether there exists a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Thus, the Court finds that it is legitimate to take also into account whether the interference envisaged by the State would be an effective means of pursuing a legitimate goal.

Even if one were to accept this argument submitted by the Government as a question of mere efficiency it must be balanced against the interests of private individuals involved. In this respect the Court reiterates that where a particularly important facet of an individual's existence or identity is at stake, the margin allowed to the State will be restricted (see Evans, cited above, § 77; X. and Y. v. the Netherlands, judgment of 26 March 1985, Series A no. 91, §§ 24 and 27; Dudgeon, cited above, § 52 and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002-VI). In the Court's view the wish for a child is one such particularly important facet and, in the circumstances of the case, outweighs arguments of efficiency. Thus, the prohibition at issue lacked a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

The Court therefore finds that the difference in treatment between the first and second applicants who, for fulfilling their wish for a child could only resort to sperm donation for in vitro fertilisation and a couple which lawfully may make use of sperm donation for in vivo fertilisation, had no objective and reasonable justification and was disproportionate. Accordingly, there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 as regards the first and second applicants.