S.H. and Others v Austria: margin of appreciation and IVF

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).

The Grand Chamber reversed that judgment a few days ago. With a vote of 13 to 4, the Grand Chamber concludes that the restrictive Austrian assisted reproduction regulation is not contrary to the Convention. Quite frankly, I have difficulties writing this post. The case raises very complex issues, situated as it is within a highly contentious debate about the way the Court should adjudicate culturally or ethically sensitive issues. Recently, the Court has had to endure a barrage of critique for what is perceived as its usurpation of power from the Contracting States. The majority of the Grand Chamber goes to great lengths in this case to appease its critics and appear respectful of State sovereignty: ‘the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating matters of artificial procreation’ (par 92). And: ‘The Court considers that concerns based on moral considerations or on social acceptability must be taken seriously in a sensitive domain like artificial procreation’ (par. 100). The stakes are high; a lot of pressure is put on the Court. In its third-party intervention, the Italian Government practically announces the apocalypse if ovum donation were allowed: ‘to call maternal filiation into question by splitting motherhood would lead to a weakening of the entire structure of society’ (par 73).

It is impossible to navigate this debate and discuss all the facets of the case satisfactorily in a blog post. I will limit my discussion to the Court’s use of the margin of appreciation- and consensus-arguments, and Austria’s reasons in support of its restrictive legislation as regards assisted reproduction.

Margin of appreciation and consensus on a ‘sensitive’ topic
The majority of the Grand Chamber deems that the Austrian government has a wide margin of appreciation (par. 97). The two most important considerations in this respect seem to be that (1) ‘the case raises sensitive moral and ethical issues’ (par. 94 and 97), and (2) ‘there is not yet clear common ground amongst the member States’ (par. 97).

I have mixed thoughts as to the question whether socially/morally/ethically sensitive and difficult issues deserve a wide margin of appreciation. I agree that it is in principle not desirable for a supranational court, like the Strasbourg Court, to attempt to impose a particular view on what it means to live the good life; especially since I have serious doubts about the effectiveness of such a top-down approach. At the same time, I think we ought to be extremely wary of arguments that invoke social or moral ‘sensitivity’. In the first place, these arguments are easily made, but hardly ever concretely substantiated with statistics or other evidence. Austria argued that it has to set limits on artificial procreation because of ‘the unease existing among large sections of society as to the role and possibilities of modern reproductive medicine’ (par. 99). Who are these sections of society and how large are they? The judgment does not tell. Secondly, arguments about social or moral sensitivity often mask improper motives, such as the wish to maintain a hierarchical or discriminatory status quo. I have blogged about disqualified forms of ‘moral views’ before (here). I will turn to the specific arguments that were used in S.H. and Others v. Austria below.

As to the question of consensus, the majority observes that there is an emerging consensus in the legislation of the Contracting States allowing sperm and ova donation for the purpose of in vitro fertilization. Nonetheless, they add that: ‘That emerging consensus is not, however, based on settled and long-standing principles established in the law of the member States but rather reflects a stage of development within a particularly dynamic field of law and does not decisively narrow the margin of appreciation of the State.’ (par96). The dissenters (Judges Tulkens, Hivelä, Lazarova Trajkovska and Tsotsoria), strongly object to this addition: ‘The Court thus takes the unprecedented step of conferring a new dimension on the European consensus and applies a particularly low threshold to it, thus potentially extending the States’ margin of appreciation beyond limits. The current climate is probably conducive to such a backward step.’ (dissent, par. 8 ) This echoes the dissenting opinion in the abortion case A, B and C v. Ireland (about which we blogged here and here).

Dissecting Austria’s arguments to ban sperm and ova donation for IVF
Austria adduced several reasons why ‘the public interest’ demands a ban on sperm and ova donation for IVF-treatment (and a ban on ova donation in general). See especially paragraphs 64-67 of the judgment. How persuasive are these reasons? Not very, I think.

–          Protection of women:
Ovum donation, so the Government observes, ‘might lead to problematic developments such as the exploitation and humiliation of women, in particular those from an economically disadvantaged background’ (par. 66). In my previous post on S.H. and Others, I’ve condemned this as a form of misplaced paternalism.

–          Mater semper certa est → fear of split motherhood:
In the Government’s view, ‘[i]n vitro fertilisation also raised the question of unusual relationships in which the social circumstances deviated from the biological ones, namely, the division of motherhood into a biological aspect and an aspect of “carrying the child” and perhaps also a social aspect’ (par. 67). This is in the judgment referred to as ‘split motherhood’. The Court acknowledges the validity of the wish to maintain ‘the basic principle of civil law – mater semper certa est’ (par. 104).
To start with, I think it is high time we get rid of notions like normal/abnormal, usual/unusual relationships. The Court has recognized the reality and diversity of human family life from Marckx v Belgium (1979, concerning an ‘illegitimate’ child) all the way to Schalk and Kopf v. Austria (2010, concerning a homosexual couple). To imply now that it is legitimate to prevent the formation of ‘unusual family relations’ is a step backwards. This is compounded by the gender-aspect of this case: why would it be so terrible if social mothers are not always biological mothers? Quite apart from the fact that this is already often the case (think of adoption, think of the phrase ‘it takes a village to raise a child’), I think that the real issue here concerns gender-roles. Women’s role as mothers has been the primary locus of their oppression. This needs a lot of unpacking, which I have no space here for, and which the Court refused to do. There is excellent literature though on the linkages between gender, parenting and assisted reproduction (See for example here).

–          The well-being of children:
The meaning of this concept is cloudy in this case. I take it that the Austrian government thinks the health of an embryo could be endangered by allowing the prohibited IVF-treatment, and also that a child’s welfare is jeopardized when her mother is not her biological mother. The Government’s arguments here – at least in so far as they are repeated in the judgment – rest on moral convictions, rather than on actual research.

–          Fear of selective reproduction:
I would say that this fear is legitimate, but does not require an absolute ban on sperm and ovum donation for IVF treatment. Other legislative safeguards could be put in place.

Conclusion: rules concerning assisted reproduction need to be kept under review by the Government
Though I appreciate the fact that the Court needs to leave room for national specificity, by now, it should be obvious that I am pessimistic about the merits of the Grand Chamber’s judgment. I regret not being able to develop my thoughts further here, but I can recommend this post by Nicolas Hervieu (in French) for further discussion.

To end on a more optimistic note, I want to flag the Grand Chamber’s conclusion. The majority observes: ‘the Court reiterates that the Convention has always been interpreted and applied in the light of current circumstances . . . Even if it finds no breach of Article 8 in the present case, the Court considers that this area, in which the law appears to be continuously evolving and which is subject to a particularly dynamic development in science and law, needs to be kept under review by the Contracting States’ (par. 118). This is a clear signal to Austria that it cannot ignore the developments in the field of assisted reproduction. There is hope for the future.