CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 1 avril 2010

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H. and Others v. Austria (application no. 57813/00)   BAN ON USING SPERM AND OVA DONATION FOR IN VITRO FERTILISATION UNJUSTIFIED   Violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for family life) of the European Convention on Human Rights      Principal facts   The applicants, all Austrian nationals, are two married couples who live in Austria. Suffering from infertility, they 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 gave decision, finding 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 an in vitro fertilisation in order to have a child of her own. Complaints, procedure and composition of the Court   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.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greece), President, Nina Vajić (Croatia), Anatoly Kovler (Russia), Elisabeth Steiner (Austria), Khanlar Hajiyev (Azerbaijan), Sverre Erik Jebens (Norway), Giorgio Malinverni (Switzerland), judges,   and André Wampach, Deputy Section Registrar.   Decision of the Court   The Court noted that among the Council of Europe Member States there was no uniform approach to medically assisted procreation and that States were under no obligation to allow it. However, once the decision had been taken to do so, the legal framework governing artificial procreation had to be shaped in a coherent manner, allowing the different legitimate interests involved to be taken into account. In the present case the applicants were subject to a difference in treatment in comparison with persons in a similar situation. In order to assess if in the present case the difference in treatment afforded to the applicants compared to persons in a similar situation was justified, the Court found it had to examine the situation of the two couples separately.   With regard to the situation of H.E.-G and M.G. and their wish to resort to in vitro fertilisation with the use of ova from a donor, the Court was not convinced by the Austrian Government’s argument that a complete prohibition was the only way to prevent the risks associated with this technique. The risk that women might be exploited and that the technique might be used for selective reproduction was an argument that could be used against other means of artificial procreation as well. Moreover, Austrian law did not allow remuneration for ovum donation. The argument that obtaining ova for the purpose of donation was a risky medical intervention could equally be raised with regard to in vitro fertilisation where the ova are taken from the woman aspiring to be a mother herself, a technique allowed in Austria.   Concerning the argument that using donor’s ova for in vitro fertilisation would create unusual family relationships, the Court noted that family relations which do not follow the typical parent-child relationship based on a direct biological link, were nothing new. They had existed since the institution of adoption, which created a family relationship not based on descent but on contract. The Court saw no insurmountable obstacles to bringing family relations resulting from a successful use of the artificial procreation techniques at issue into the general framework of family law. The Court therefore concluded, by five votes to two, that there had been a violation of Article 14 in conjunction with Article 8.   With regard to the situation of S.H and D.H. and their wish to resort to in vitro fertilisation with the use of sperm from a donor, the Court observed first that this artificial procreation technique combined two techniques which taken alone were allowed under the Artificial Procreation Act, namely in vitro fertilisation with ova and sperm of the couple itself on the one hand and sperm donation for non- in vitro conception on the other hand. A prohibition of the combination of these lawful techniques would thus have required particularly persuasive arguments. Most of the arguments brought forward by the Government were not specific to sperm donation for in vitro fertilisation, however. As regards the Government’s argument that non- in vitro artificial insemination had been in use for some time, that it was easy to handle and its prohibition would therefore have been hard to monitor, the Court found that a question of mere efficiency carried less weight than one of principle based on moral and ethical convictions shared by society. Balancing these relatively weak arguments against the applicants’ interest, their wish to conceive a child, the Court found that the difference in treatment at issue was not justified. It therefore concluded, by six votes to one, that there had been a violation of Article 14 in conjunction with Article 8.   Under Article 41 (just satisfaction) of the Convention, the Court awarded each applicant couple 10,000 euros in respect of non-pecuniary damage.   ***   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).     Press contacts   Nina Salomon (tel: + 33 (0)3 90 21 49 79) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.