Knecht v. Romania

The applicant, Knecht, is an American and German national. In 2008, she used the “S. Clinic” in Bucharest to store embryos. However, S. Clinic’s authorization from the National Transplant Agency (NTA) to function as a genetic bank was under criminal investigation. In July 2009, the Directorate for the Investigation of Organised Crime and Terrorism attached to the Prosecutor General’s Office (DIICOT) closed the S. Clinic and seized all genetic material, depositing them at the Mina Minovici Institute of Forensic Medicine (IFM). Knecht contacted the IFM to inquire about her embryos, and she was told that she will need a specialist in embryology to retrieve them.

Knecht contacted doctors at P. Clinic, who agreed to retrieve the embryos. However, when the P Clinic attempted to obtain authorization from the NTA to retrieve the embryos from the IFM, the NTA rejected the request on the grounds that neither the S. Clinic nor the IFM were accredited genetic banks, and therefore there was no guarantee that legal requirements regarding storage, traceability, and sanitation of genetic material were being met. November 2009, Knecht’s application to retrieve her embryos was granted by the DIICOT. However, the applicant was without NTA authorization.

The applicant requested permission to retrieve her embryos from the Bucharest County Court civil claims. Her request was denied on the ground that she already had permission from the DIICOT prosecutor in November 2009, and therefore, any further requests pertaining to the implementation and enforcement of the decision exceeded the scope of the criminal trial. The court held that the applicant may contest the NTA’s refusal to authorize the transfer before civil courts.

Knecht appealed this decision, which was dismissed on the ground that there is no legal basis to respond to the request within the criminal proceedings.

Knecht lodged a request with the Bucharest Court of Appeal seeking to obtain the NTA’s authorization. The NTA reiterated the same reasons behind their initial refusal. The court dismissed the request as ill-founded, considering the legislations surrounding safety standards of genetic material. It held that the NTA decision was justified.

Knecht appealed this judgment at the High Court of Cassation and Justice. She argued that the initial transfer took place with the approval of the Ministry of Health and the NTA’s manager and therefore the NTA’s refusal is unjustified. In May 2011, the High Court allowed the appeal, holding that the NTA’s conduct infringed the applicant’s right to a private life and the right to life. The High Court obliged the NTA to approve the transfer of the embryos from the IFM to an authorized clinic in Romania or abroad.

Pursuant to the High Court decision, the NTA issued a decision to authorize the release of the embryos. However, the NTA stated that the transfer could only occur to a domestic facility because an international transfer would require “an authorization for export” which the applicant had not requested and which required a “very particular character” that the embryos did not have, and therefore, prohibited export. Subsequently, the applicant was unsuccessful in transferring the embryos to the B Clinic on 6 October 2011 because the clinic required the relevant medical information and medical history from the very beginning, and the clinic did not have the quarantine conditions to accept those embryos pursuant to legal requirements.

On 12 October 2011, a decision was issued by a DIICOT prosecutor to transfer the embryos to a State medical institution accredited as a genetic bank and capable of implanting the embryos. Of the only two State accredited institutions, Prof. Dr. Panait Sarbu Obstetrics and Gynecology Hospital was selected for efficiency reasons and the transfer was performed.

Knecht submitted that this transfer was performed without her consent and that she had adverse experiences in the past at this Hospital such that she lost trust in its doctors. She further submitted that this transfer denied her the ability to transfer the embryos to the clinic of her choice. In response, the Hospital wrote to Knecht informing her that she can arrange with the clinic of her choice to retrieve the embryos from the Hospital. By May 2012, the applicant alleged that her efforts in finding a clinic willing to transfer her embryos were unsuccessful because the clinics found the risk too high. In response, the Government sent a document to the applicant on June 2012 issued by the Hospital which confirmed that (i) the applicant could initiate an IVF procedure in the Hospital with the assistance of a doctor and embryologist of her own choice; and (ii) that the M.N.L. private clinic is willing to accept the embryos and perform the IVF procedure.

The applicant brings the present claim against the Romanian Government, alleging that the State’s failure to allow her to transfer her embryos that were intended to be used for IVF constituted a violation of Article 8 of the European Convention on Human Rights by breaching her right to private and family life.

The Court held that the Government’s conduct did not amount to a breach of Article 8 of the Convention. The Court acknowledged that Article 8 is engaged, since it concerns the decision of both having and not having a child and whether to use medically assisted procreation to achieve this end. However, the Court highlighted that Article 8 does not merely compel the State to abstain from any interference. Under Article 8, a State has positive and negative obligations. The negative obligation is to refrain from arbitrary interference into private and family life. The positive obligation may concern adopting measures designed to secure respect for private and family life. To that end, courts must consider the fair balance to be achieved between the competing interests.

An interference with private life, as in the applicant’s case, can be justified under paragraph 2 of Article 8 as long as it is in accordance with the law, directed toward a legitimate aim, and necessary in a democratic society.

On the issues whether the authorities’ actions were in accordance with the law and directed toward a legitimate aim, this was not in dispute between the parties. The court recognized that the prosecutor’s action to seize the embryos from the S clinic as part of a criminal investigation against the S Clinic as within the provisions of Article 165 of the Romanian Criminal Procedure Code. The Court further acknowledged that the measure furthered legitimate aims: preventing crime, protecting health or morals, and protecting the rights and freedom of others in the context of a clinic operating without the required license.

To determine whether the measures taken by the Government were “necessary in a democratic society”, the Court assessed the case as a whole and determined whether the reasons submitted were relevant and sufficient to justify the measures. The Court recognized that its task is not the take on the role of national authorities in determining policy or procedures for regulating artificial reproduction issues, especially considering that IVF continues to present ethical issues in a fast-moving field of scientific advances. This is why the Court accorded a wide margin of appreciated to the State to both its decision to intervene into the field, and once it has intervened, to the rules it establishes to strike the balance between competing public and private interests.

With this framework, the Court found that the prosecutor’s decision to seize the embryos in connection with its criminal investigation into S. Clinic and deposit them into the IFM was not arbitrary nor unreasonable. Insofar as the Knecht’s complaint that the NTA denied her request to transfer the embryos from the IFM to a clinic of her choosing, the Court found that this complaint was sufficiently addressed by the High Court’s decision which compelled the NTA to approve the transfer, which was ultimately performed at the Prof. Dr. Panait Sarbu Hospital.

With regards to the applicant’s complaint that she would not be able to proceed with IVF at the Hospital by virtue of her unsatisfactory experiences in the past, the Court noted that there is insufficient evidence to demonstrate that her interests were not adequately accommodated under Article 8.

Therefore, the Court found that it has not been satisfied that the State has failed to strike a fair balance between the competing interests, and accordingly, there was no infringement on the applicant’s Article 8 rights.

“… the Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may 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 Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests” (Para 55).

“Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned …” (Para 56).

“Consequently, the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating matters of artificial procreation, in respect mainly of procedures to be followed or authorities to be involved and to what extent, especially since the use of IVF treatment gave rise then and continues to give rise today to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments. It is why in such a context the Court considered that the margin of appreciation to be afforded to the respondent State is a wide one (see S.H. and Others v. Austria, cited above, § 97). The State’s margin in principle extends both to its decision to intervene in the area and, once it has intervened, to the detailed rules it lays down in order to achieve a balance between the competing public and private interests …” (Para 59).