S.H. v. Austria

The four applicants in this case were two couples suffering from infertility. The first couple included a woman who suffered from fallopian-tube-related infertility, which prevented ova from passing into her uterus, and her husband, who was infertile. The second couple included a woman who suffered from agonadism, which means she did not produce ova at all, and her husband who was fertile.

Austria’s Artificial Procreation Act (“Act”) regulated the use of medical techniques for inducing conception. Under the Act, sperm could only be donated for in vivo fertilization, and ovum donation was prohibited. Thus, neither of the two couples could access the medical techniques that could help them successfully conceive children.

The applicants alleged that the Act violated their rights under Article 8 (right to private life) of the European Convention on Human Rights.

The Court held that the Act infringed the applicants’ rights under Article 8 but that the infringement was justified.

The Court acknowledged that “private life” under Article 8 included the right to respect for the decision to have or not to have a child and the right to make use of medically-assisted procreation for that purpose. The Court considered whether infringement of the applicants’ rights was justified under Article 8(2) as pursuing a legitimate aim “in accordance with the law.” The Court explained that a wide margin of appreciation should be given to the State under Article 8(2) when there is no consensus within the member States of the Council of Europe with respect to the subject matter of the law. In this case, access to medically-assisted procreation was regulated differently across Europe.

The Court held that the prohibitions on certain techniques for artificial procreation did not exceed the margin of appreciation afforded to the State under Article 8(2) of the Convention.

The dissenting judges held that there was a violation of the applicants’ rights under Article 8 of the Convention and that the Court should have examined the provisions of the Act without according the state a margin of appreciation to violate Article 8 rights.

“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 family relationships which might adversely affect the well-being of a future child.” Para. 24.

“Since the use of in vitro fertilisation 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, and since the questions raised by the present case touch on areas where there is not yet clear common ground among the member States, the Court considers that the margin of appreciation to be afforded to the respondent State must be a wide one … The State’s margin in principle extends both to its decision to intervene in the area and, once having intervened, to the detailed rules it lays down in order to achieve a balance between the competing public and private interests.” Para. 97.