Missed Chance at Condemning Paternalism: S.H. and others v. Austria, Part Two

In a previous entry, Stijn commented on the case of S.H. and others v. Austria (see ‘How the outcome can be good, but the reasoning sloppy’). I agree with him on both counts; the outcome in S.H. is to be applauded, but the Court’s reasoning lacks bite.

At issue was the Austrian Artificial Procreation Act prohibiting the use of ova from donors and sperm from donors for in vitro fertilization. The Court found that there was no reasonable and objective justification for the difference in treatment between the applicants and couples which may make use of artificial procreation techniques without resorting to ova donation or couples which lawfully may make use of sperm donation for in vivo fertilization.

The Austrian Government argued that “ova donation might lead to problematic developments such as exploitation and humiliation of women, in particular of those from an economically disadvantaged background” (par. 49). The Court’s reply to this argument is, rightly, that potential future abuse is not a sufficient reason for prohibiting a specific procreation technique as a whole if it is possible to devise safeguards against such abuse (par. 77).

But what the Court fails to do is to condemn the Government’s argument. Why does this risk of exploitation and humiliation only pertain to women? Why can men not be exploited and humiliated when donating their sperm? The truth is that there is an invidious stereotype at work here that formed the underlying reason for the Austrian legislation. The stereotype is that women’s sexuality is something vulnerable, something holy that needs to be protected, while men’s sexuality is something active – if not aggressive. That is paternalism, not biology.

4 thoughts on “Missed Chance at Condemning Paternalism: S.H. and others v. Austria, Part Two

  1. Salutations for the initiative to create this blog – it is something very useful both for lawyers and non-lawyers. I know that I personally will regularly consult the blog in my every day research – keep up the good work, guys!

  2. I fully agree with you, Alexandra. I was also struck by the fact that the Court failed to address this part of the Government’s argument. If the law sought to protect economically disadvantaged groups, why then only women should be protected from potential abuses and humiliation. Like you, I do not see any other possible rationale here but pure paternalism.

  3. I think the answer to your question is quite straightforward – the Court didn’t condemn the government’s argument because it could get away without doing it, and 9 times out of 10 courts will do that.

  4. […] In Austria, it is forbidden to use donated sperm or ova for in vitro fertilization (‘IVF’). Ovum donation is under all circumstances prohibited; sperm donation is only possible when the sperm is directly placed in the womb of a woman (in vivo artificial insemination). Two Austrian couples complained about this regulation; the first couple needs IVF treatment with use of donor sperm and the other couple needs IVF with use of a donor ovum to fulfill their wish for a child of which at least one of them is the genetic parent. In 2010, the First Section held in S.H. and Others v. Austria that the Austrian regulation violated Article 14 in conjunction with Article 8 of the Convention, with a vote of 6-1 regarding the first couple and 5-2 vote regarding the second couple. Stijn and I have both blogged about that Chamber judgment (see here and here). […]

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