How the outcome can be good, but the reasoning sloppy

The judgment delivered on 1 April 2010 in the case of S.H. and others v. Austria concerned the use of donors for in vitro fertilization (IVF). The applicants, two couples, wished to have children, but medical reasons impeded both couples from having them the biological way. They had no choice but to rely on IVF with the use of donors for reproduction. For one couple this entailed using sperm from a donor to fertilize the female partner’s ovum, while for the other it involved using the male partner’s sperm to fertilize a donor’s ovum. However, Austrian law prohibited the use of sperm from a donor for IVF and excluded the use of donated ova under all circumstances. At the same time the law did not oppose IVF when the ovum and sperm were both taken from the partners and under strict conditions also allowed the donation of sperm for in vivo fertilization.

In its judgment, the Court found a violation of art. 14, taken in conjunction with the right to family life under art. 8, in relation to all applicants. The most interesting part of the judgment is the reasoning of the Court concerning the third and fourth applicant, the couple that wished to make use of donated ova.

The relevance of the judgment of the Court lies firstly in the fact that, despite the wide margin of appreciation awarded to the Austrian authorities, the Court rejected the Government’s argument based on moral considerations or on social acceptability. The Court held that these arguments would only be relevant at the stage of deciding whether or not to allow artificial procreation in general, a stage that Austria had already concluded with a decision to allow it. As a result, said arguments could not justify a complete ban on a specific artificial procreation technique such as ova donation. The Court thus made it clear that, once artificial procreation is allowed, reasons other than moral considerations or social acceptability must be invoked to justify the prohibition of certain techniques.

In the instant case, all those other arguments invoked by the Government were also rejected. Considering the wide variety of arguments relied on by the Government, it is safe to assume that the Court considers that if artificial procreation is allowed under national legislation, this necessarily includes the use of donated ova (and donated sperm for that matter). While I personally support the outcome of the judgment, its reasoning lacks strength in certain areas.

Concerning the argument of medical risks involved, the Court held that a complete ban would only be proportionate if it was the only means available to prevent serious repercussions. Subsequently, it found that in the present case such a ban was not the only or the least intrusive means available. In this regard, sloppiness on the part of the Court creates confusion. Which test applies in the end? One based on the only means available or one on the least intrusive means available?

Another argument invoked by the Government, the risk of exploitation of women through pressure put on them to donate their ova, was improperly addressed. The Court rejected the argument because it saw it as an argument directed against artificial procreation in general and because it could not justify a complete ban when the possibilities of regulation and the inclusion of safeguards exist. While the second argument of the Court is a logical one, the first one seems to dismiss the concerns a little bit too easily. The same issue simply does not come into play when there is no donation of ova. Therefore, it is hard to see how it is an argument against artificial procreation in general, as allowed under Austrian law. This is not to say that the argument of the Government should hold any ground, but at least it merited a closer examination rather than a swift dismissal by the Court.

The argument of the Government based on the maintenance of legal certainty in the area of family law through the guarantee mater semper certa est, in order to avoid the situation in which two persons could claim to be the biological parent, suffered a similar fate. In rejecting this argument, the Court relied on the fact that unusual family relations in a broad sense are well known to the legal orders of the Contracting States, in the form of adoptive relationships. As a result, the Court found that there should not be any insurmountable obstacles to adapting the family law to accommodate the new situation. While the latter may be true, drawing the parallel to adoption does not make complete sense. The situation arising from donation of ova creates an at least theoretical question at the moment of birth as to who the biological mother of the child is, while such an issue does not arise in the case of adoption. In adoption cases, the biological mother is the legal mother of the child at birth. The transfer of legal parenthood through adoption takes place afterwards. However, in the case of IVF with a donated ova, the question as to who the mother is in mater semper certa est is not so clear cut, since the mother delivering the child is not the person whose genetic material the child carries. Obviously, this complication can easily be resolved by including a specific new rule in the family law, accommodating for the particular circumstance. But this conclusion could be reached by relying on simple logical reasoning and did not necessitate drawing an imperfect parallel to adoption situations.