April 26, 2010
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.