A complaint by two married couples against Austria’s ban on the use of medically assisted “baby making” techniques will be heard tomorrow by judges.
The Grand Chamber hearing in the case of S.H. and others v. Austria (no. 57813/00) followed an application brought by Austrian nationals, suffering from infertility, who wish to use medically-assisted procreation techniques which are not allowed under Austrian law.
S.H. suffers from fallopian-tube-related infertility and her husband D.H. is also infertile. Owing to their medical conditions, only in vitro fertilisation with the use of sperm from a donor would allow them to have a child of whom one of them is the genetic parent. H.E.-G. suffers from agonadism, which means that she does not produce ova, while her husband M.G. can produce sperm fit for procreation. Only in vitro fertilisation with the use of ova from a donor would allow them to have a child of whom one of them is the genetic parent.
However, both of these possibilities are ruled out by the Austrian Artificial Procreation Act, which prohibits the use of sperm from a donor for in vitro fertilisation and ova donation in general. At the same time, the Act allows other assisted procreation techniques, in particular in vitro fertilisation with ova and sperm from the spouses or cohabitating partners themselves (homologous methods) and, in exceptional circumstances, donation of sperm when it is introduced into the reproductive organs of a woman.
In May 1998, S.H and H.E.-G. lodged an application with the Constitutional Court for a review of the relevant provisions of the Artificial Procreation Act. In October 1999, the Constitutional Court found that there was an interference with the applicants’ right to respect for family life, but that it was justified, as the provisions aimed to avoid the forming of unusual personal relations, such as a child having more than one biological mother (a genetic one and one carrying the child). They also aimed to avoid the risk of exploitation of women, as pressure might be put on a woman from an economically- disadvantaged background to donate ova, who otherwise would not be in a position to afford in vitro fertilisation in order to have a child of her own.
The applicants complained that the prohibition of sperm and ova donation for in vitro fertilisation violated their right to respect to family life under Article 8, and that the difference in treatment compared to couples who wished to use medically-assisted procreation techniques, but did not need to use ova or sperm donation for in vitro fertilisation, amounted to a discriminatory treatment, in violation of Article 14.
The application was lodged with the European Court of Human Rights on 8 May 2000.
In its judgment of 1 April 2010, the Court held, by five votes to two, that there had been a violation of Article 14 in conjunction with Article 8 as regards the prohibition of in vitro fertilisation with the use of ova from a donor, which affects the couple H.E.-G and M.G. and, by six votes to one, that there had been a violation of Article 14 in conjunction with Article 8 as regards the prohibition of in vitro fertilisation with the use of sperm from a donor, which affects the couple S.H and D.H.
On 4 October 2010, the case was referred to the Grand Chamber at the Austrian Government’s request.