CASE OF S.H. AND OTHERS v. AUSTRIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 8
Anatoly Kovler;Christos Rozakis;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Ineta Ziemele;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Loukis Loucaides;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
9. The applicants were born in 1966, 1962, 1971 and 1971 respectively and live in L. and R. 10. The first applicant is married to the second applicant and the third applicant to the fourth applicant. 11. The first applicant suffers from fallopian-tube-related infertility (eileiterbedingter Sterilität). She produces ova, but, due to her blocked fallopian tubes, these cannot pass to the uterus, so natural fertilisation is impossible. The second applicant, her husband, is infertile. 12. The third applicant suffers from agonadism (Gonadendysgenesie), which means that she does not produce ova at all. Thus, she is completely infertile but has a fully developed uterus. The fourth applicant, her husband, in contrast to the second applicant, can produce sperm fit for procreation. 13. On 4 May 1998 the first and third applicants lodged an application (Individualantrag) with the Constitutional Court (Verfassungsgerichtshof) for a review of the constitutionality of sections 3(1) and 3(2) of the Artificial Procreation Act (Fortpflanzungsmedizingesetz – see paragraphs 27-34 below). 14. The applicants argued before the Constitutional Court that they were directly affected by the above provisions. The first applicant submitted that she could not conceive a child by natural means; thus, the only way open to her and her husband would be in vitro fertilisation using sperm from a donor. That medical technique was, however, ruled out by sections 3(1) and 3(2) of the Artificial Procreation Act. The third applicant submitted that she was infertile. As she suffered from agonadism, she did not produce ova at all. Thus, the only way open to her of conceiving a child was to resort to a medical technique of artificial procreation referred to as heterologous embryo transfer, which would entail implanting into her uterus an embryo conceived with ova from a donor and sperm from the fourth applicant. However, that method was not allowed under the Artificial Procreation Act. 15. The first and third applicants argued before the Constitutional Court that the impossibility of using the above-mentioned medical techniques for medically assisted conception amounted to a breach of their rights under Article 8 of the Convention. They also relied on Article 12 of the Convention and on Article 7 of the Austrian Federal Constitution, which guarantees equal treatment. 16. On 4 October 1999 the Constitutional Court held a public hearing in which the first applicant, assisted by counsel, participated. 17. On 14 October 1999 the Constitutional Court decided on the first and third applicants’ request. It found that their request was partly admissible in so far as the wording concerned their specific case. In this respect, it found that the provisions of section 3 of the Artificial Procreation Act, which prohibited the use of certain procreation techniques, was directly applicable to the applicants’ case without it being necessary for a decision by a court or administrative authority to be taken. 18. As regards the merits of their complaints, the Constitutional Court considered that Article 8 of the Convention was applicable in the applicants’ case. Although no case-law of the European Court of Human Rights existed on the matter, it was evident, in the Constitutional Court’s view, that the decision of spouses or a cohabiting couple to conceive a child and make use of medically assisted procreation techniques to that end fell within the sphere of protection under Article 8. 19. The impugned provisions of the Artificial Procreation Act interfered with the exercise of this freedom in so far as they limited the scope of permitted medical techniques of artificial procreation. As for the justification for such an interference, the Constitutional Court observed that the legislature, when enacting the Artificial Procreation Act, had tried to find a solution by balancing the conflicting interests of human dignity, the right to procreation and the well-being of children. Thus, it had enacted as leading features of the legislation that, in principle, only homologous methods – such as using ova and sperm from the spouses or from the cohabiting couple itself – and methods which did not involve a particularly sophisticated technique and were not too far removed from natural means of conception would be allowed. The aim of the legislature was to avoid the forming of unusual family relationships, such as a child having more than one biological mother (a genetic mother and one carrying the child), and to avoid the risk of the exploitation of women. 20. The use of in vitro fertilisation as opposed to natural procreation raised serious issues as to the well-being of children thus conceived, their health and their rights, and also touched upon the ethical and moral values of society and entailed the risk of commercialisation and selective reproduction (Zuchtauswahl). 21. However, applying the principle of proportionality under Article 8 § 2 of the Convention, such concerns could not lead to a total ban on all possible medically assisted procreation techniques, as the extent to which public interests were concerned depended essentially on whether a homologous technique (having recourse to the gametes of the couple) or heterologous technique (having recourse to gametes external to the couple) was used. 22. In the Constitutional Court’s view, the legislature had not overstepped the margin of appreciation afforded to member States when it established the permissibility of homologous methods as a rule and insemination using donor sperm as an exception. The choices the legislature had made reflected the then current state of medical science and the consensus in society. It did not mean, however, that these criteria were not subject to developments which the legislature would have to take into account in the future. 23. The legislature had also not neglected the interests of men and women who had to avail themselves of artificial procreation techniques. Besides strictly homologous techniques it had accepted insemination using donor sperm. Such a technique had been known and used for a long time and would not bring about unusual family relationships. Further, the use of these techniques was not restricted to married couples but also included cohabiting couples. However, the interests of the individuals concerned had to give way to the above-mentioned public interest when a child could not be conceived by having recourse to homologous techniques. 24. 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. 25. Since the impugned provisions of the Artificial Procreation Act were in line with Article 8 of the Convention and the principle of equality under the Federal Constitution, there had also been no breach of Article 12 of the Convention. 26. This decision was served on the first and third applicants’ lawyer on 8 November 1999. 27. The Artificial Procreation Act (Fortpflanzungsmedizingesetz, Federal Law Gazette no. 275/1992) regulates the use of medical techniques for inducing conception of a child by means other than copulation (section 1(1)). 28. These methods comprise: (i) introduction of sperm into the reproductive organs of a woman; (ii) unification of ovum and sperm outside the body of a woman; (iii) introduction of viable cells into the uterus or fallopian tube of a woman; and (iv) introduction of ovum cells or ovum cells with sperm into the uterus or fallopian tube of a woman (section 1(2)). 29. Medically assisted procreation is allowed only within a marriage or a relationship similar to marriage, and may only be carried out if every other possible and reasonable treatment aimed at inducing pregnancy through intercourse has failed or has no reasonable chance of success (section 2). 30. Under section 3(1), only ova and sperm from spouses or from persons living in a relationship similar to marriage (Lebensgefährten) may be used for the purpose of medically assisted procreation. In exceptional circumstances, namely if the spouse or male partner is infertile, sperm from a third person may be used for artificial insemination when introducing sperm into the reproductive organs of a woman (section 3(2)). This is called in vivo fertilisation. In all other circumstances, and in particular for the purpose of in vitro fertilisation, the use of donor sperm is prohibited. 31. Under section 3(3), ova or viable cells may only be used for the woman from whom they originate. Thus, ovum donation is always prohibited. 32. The further provisions of the Artificial Procreation Act stipulate, inter alia, that medically assisted procreation may only be carried out by specialised physicians and in specially equipped hospitals or surgeries (section 4) and with the express and written consent of the spouses or cohabiting persons (section 8). 33. In 1999 the Artificial Procreation Act was supplemented by a Federal Act establishing a fund for financing in vitro fertilisation treatment (Bundesgesetz, mit dem ein Fonds zur Finanzierung der In-vitro-Fertilisation eingerichtet wird – Federal Law Gazette, Part I, no. 180/1999) in order to subsidise in vitro fertilisation treatment allowed under the Artificial Procreation Act. 34. The issue of maternity and paternity is regulated in the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch). Under Article 137b, introduced at the same time as the entry into force of the Artificial Procreation Act, the mother of a child is the woman who has given birth to that child. As regards paternity, Article 163 provides that the father of a child is the male person who has had sexual intercourse with the mother within a certain period of time (180 to 300 days) before the birth. If the mother has undergone medically assisted procreation treatment using sperm from a donor, the father is the person who has given his consent to that treatment, that is, the spouse or male partner. A sperm donor can in no circumstances be recognised as the father of the child. 35. The following overview of the law and practice concerning artificial procreation in Europe is based essentially on the following documents: “Medically Assisted Procreation and the Protection of the Human Embryo: Comparative Study on the Situation in 39 States” (Council of Europe, 1998); the replies by the member States of the Council of Europe to the Steering Committee on Bioethics’ “Questionnaire on access to medically assisted procreation (MAP) and on right to know about their origin for children born after MAP” (Council of Europe, 2005); and a survey carried out in 2007 by the International Federation of Fertility Societies. 36. From this material it would appear that in vitro fertilisation treatment was (as at 2007) regulated by primary or secondary legislation in Austria, Azerbaijan, Bulgaria, Croatia, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Latvia, the Netherlands, Norway, the Russian Federation, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. In Belgium, the Czech Republic, Ireland, Lithuania, Malta, Poland, Serbia and Slovakia such treatment was governed by clinical practice, professional guidelines, royal or administrative decree or general constitutional principles. 37. The Council of Europe study sets out, in particular, the position of domestic law as regards seven different artificial procreation techniques: artificial insemination within a couple, in vitro fertilisation within a couple, artificial insemination by a sperm donor, ovum donation, ovum and sperm donation, embryo donation and intracytoplasmic sperm injection (an in vitro fertilisation procedure in which a single sperm is injected directly into an ovum). 38. It seems that among the countries which have regulated the issue of artificial procreation, sperm donation is currently prohibited in Italy, Lithuania and Turkey. All three countries do not permit heterologous assisted fertilisation. Countries allowing sperm donation do not generally distinguish in their regulations between the use of sperm for artificial insemination and for in vitro fertilisation. As regards ovum donation, this is prohibited in Croatia, Germany, Norway and Switzerland, in addition to the three countries mentioned above. 39. It further appears that in a number of countries, such as Cyprus, Luxembourg, Poland, Portugal and Romania, where the matter was not regulated (as at 2007), the donation of both sperm and ova is used in practice. 40. A comparison between the Council of Europe study of 1998 and the survey conducted by the International Federation of Fertility Societies in 2007 shows that in the field of medically assisted procreation legal provisions are developing quickly. In Denmark, France and Sweden, sperm and ovum donation, which was previously prohibited, is now allowed since the entry into force of new legal provisions in 2006, 2004 and 2006 respectively. In Norway, sperm donation for in vitro fertilisation has been allowed since 2003, but not ovum donation. Since 2007, medically assisted procreation is also regulated by law in Finland allowing sperm and ovum donation. 41. Principle 11 of the principles adopted in 1989 by the Ad Hoc Committee of Experts on Progress in the Biomedical Sciences (CAHBI), the expert body within the Council of Europe which preceded the present Steering Committee on Bioethics, states: “1. In principle, in vitro fertilisation shall be effected using gametes of the members of the couple. The same rule shall apply to any other procedure that involves ova or in vitro or embryos in vitro. However, in exceptional cases defined by the member States, the use of gametes of donors may be permitted.” 42. The Council of Europe Convention on Human Rights and Biomedicine of 1997 does not deal with the question of donation of gametes, but forbids the use of medically assisted reproduction techniques to choose the sex of a child. Article 14 reads as follows: “The use of techniques of medically assisted procreation shall not be allowed for the purpose of choosing a future child’s sex, except where serious hereditary sex-related disease is to be avoided.” 43. The Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin of 2002, which promotes the donation of organs, expressly excludes from its scope reproductive organs and tissues. 44. Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on the setting of standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, which seeks to ensure the quality and safety aspects of human tissues and cells intended for human applications, provides in its Preamble as follows: “12. This directive should not interfere with decisions made by member States concerning the use or non-use of any specific type of human cells, including germ cells and embryonic stem cells. If, however, any particular use of such cells is authorised in a member State, this directive will require the application of all provisions necessary to protect public health, given the specific risks of these cells based on the scientific knowledge and their particular nature, and guarantee respect for fundamental rights. Moreover, this directive should not interfere with provisions of member States defining the legal term ‘person’ or ‘individual’.”