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Procreazione medicalmente assistita - Corte di Strasburgo

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
il documento riporta il testo della sentenza della Corte di Strasburgo contro l'Austria in materia di procreazione medicalmente assistita in rapporto alla non discriminazione... Vedi di più

Esame di Diritto Costituzionale Avanzato docente Prof. F. Cerrone

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ESTRATTO DOCUMENTO

S. H. AND OTHERS v. AUSTRIA JUDGMENT 3

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

embryotransfer, 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.

13. The first and third applicants argued before the Constitutional Court

that the impossibility of using the above-mentioned medical techniques for

medically assisted conception was 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 Federal Constitution, which guarantees equal treatment.

14. On 4 October 1999 the Constitutional Court held a public hearing in

which the first applicant, assisted by counsel, participated.

15. On 14 October 1999 the Constitutional Court decided on the first

and third applicants' request. The Constitutional Court 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.

16. As regards the merits of their complaints the Constitutional Court

considered that Article 8 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.

17. 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 of 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 the cohabiting

couple itself – would be allowed and only methods which did not involve a

particularly sophisticated technique and were not too far removed from

natural means of conception. The aim was to avoid the forming of unusual

personal relations such as a child having more than one biological mother (a

genetic mother and one carrying the child) and to avoid the risk of

exploitation of women.

18. 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

4 S. H. AND OTHERS v. AUSTRIA JUDGMENT

of society and entailed the risk of commercialisation and selective

reproduction (Zuchtauswahl).

19. Applying the principle of proportionality under Article 8 § 2,

however, 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 to a large extent on whether a

heterologous or homologous technique was used.

20. In the Constitutional Court's view, the legislator 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. This compromise reflected the 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 legislator would

have to take into account in the future.

21. The legislator 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 sperm

from donors. 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. In so far, however, as homologous techniques were not

sufficient for the conception of a child the interests of the individuals

concerned ran counter to the above-mentioned public interest.

22. The Constitutional Court also found that for the legislator to prohibit

heterologous techniques, while accepting as lawful only homologous

techniques, was in accordance with the prohibition of discrimination as

contained in the principle of equality. 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 legislator was not bound to apply

strictly identical regulations to both. Also, the fact that insemination with

donor sperm was allowed while ova donation was not did not raise a

discrimination issue because again, as pointed out above, there was no risk

of creating unusual relationships which might adversely affect the well-

being of a future child as there was with heterologous insemination.

23. 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.

24. This decision was served on the first and third applicants' lawyer on

8 November 1999. S. H. AND OTHERS v. AUSTRIA JUDGMENT 5

II. RELEVANT NON-CONVENTION MATERIAL

A. Domestic law: the Artificial Procreation Act

25. The Artificial Procreation Act (Fortpflanzungsmedizingesetz,

Federal Law Gazette 275/1992) regulates the use of medical techniques for

inducing conception of a child by means other than copulation

(section 1(1)).

26. 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)).

27. 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).

28. 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, sperm from a third person may be used for artificial

insemination when introducing sperm into the reproductive organs of a

woman (section 3(2)). In all other circumstances, and in particular for the

purpose of in vitro fertilisation, the use of sperm by donors is prohibited.

29. Under section 3(3), ova or viable cells may only be used for the

woman from whom they originate. Thus ova donation is always prohibited.

30. 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).

31. 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-

Fertilisiation eingerichtet wird – Federal Law Gazette Part I No. 180/1999)

in order to subsidise in–vitro fertilisation treatment allowed under the

Artificial Procreation Act.

B. The position in other countries

32. On the basis of the material available to the Court, including the

document “Medically-assisted Procreation and the Protection of the Human

Embryo Study on the Solution in 39 States” (Council of Europe, 1998) and

6 S. H. AND OTHERS v. AUSTRIA JUDGMENT

the replies by the member States of the Council of Europe to the Steering

Committee on Bioethics' “Questionnaire on Access to Medically-assisted

Procreation” (Council of Europe, 2005), it would appear that IVF treatment

is regulated by primary or secondary legislation in Austria, Azerbaijan,

Bulgaria, Croatia, Denmark, Estonia, 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, Finland, Ireland, Malta,

Lithuania, Poland, Serbia and Slovakia such treatment is governed by

clinical practice, professional guidelines, royal or administrative decree or

general constitutional principles.

33. The study in particular sets out 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 sperm donor, ova donation, ova and sperm donation,

embryo donation and intracytoplasmic sperm injection (an in vitro

fertilization procedure in which a single sperm is injected directly into an

egg).

34. As far as can be seen, sperm donation is currently prohibited only in

three countries: Italy, Lithuania and Turkey, which all ban heterologous

assisted fertilisation as a whole. 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 the donation

of ova, it is prohibited in Croatia, Germany, Norway and Switzerland, in

addition to the three countries mentioned above. Since Germany in practice

allows donation of sperm only for non-in vitro fertilisation, the legal

situation is quite similar to the situation in Austria.

35. In a number of countries, such as Cyprus, Luxembourg, Malta,

Finland, Poland, Portugal and Romania, where the matter is not regulated,

the donation of both sperm and ova is used in practice.

36. A comparison between the Council of Europe study of 1998 and a

survey conducted by the International Federation of Fertility Societies

of 2007 shows that in the field of medically assisted procreation legal

provisions are developing quickly. In Denmark, France and Sweden sperm

and ova 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 ova donation.

C. Council of Europe Instruments

37. Principle 11 of the principles adopted by the ad hoc committee of

experts on progress in the biomedical sciences, the expert body within the

S. H. AND OTHERS v. AUSTRIA JUDGMENT 7

Council of Europe which preceded the present Steering Committee on

Bioethics (CAHBI, 1989), 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. ”

38. The Convention on Human Rights and Biomedicine of 1997 does

not deal with the question of donation of gametes, but forbids to use a

medically assisted reproduction technique to choose the sex of a child. Its

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.”

39. The Additional Protocol to the above Convention, on

Transplantation of Organs and Tissues of Human Origin, of 2002, which

promotes donation of organs, expressly excludes from its scope

reproductive organs and tissues.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

READ IN CONJUNCTION WITH ARTICLE 8

40. The applicants complained that the prohibition of heterologous

artificial procreation techniques for in vitro fertilisation laid down by

section 3(1) and section 3(2) of the Artificial Procreation Act had violated

their rights under Article 14 read in conjunction with Article 8.

41. These provisions, in so far as relevant, read as follows:

Article 14: Prohibition of discrimination

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be

secured without discrimination on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social origin, association with a

national minority, property, birth or other status.”

Article 8: Right to respect for private and family life

“1. Everyone has the right to respect for his private and family life ...

2. There shall be no interference by a public authority with the exercise of this right

except such as is in accordance with the law and is necessary in a democratic society

8 S. H. AND OTHERS v. AUSTRIA JUDGMENT

in the interests of national security, public safety or the economic well-being of the

country, for the prevention of disorder or crime, for the protection of health or morals,

or for the protection of the rights and freedoms of others.”

A. Submissions by the parties

1. The applicants

42. The applicants submitted that Article 8 of the Convention was

applicable and therefore also Article 14. Because of the special importance

of the right to found a family and the right to procreation, the Contracting

States enjoyed no margin of appreciation at all in regulating these issues.

The decisions to be taken by couples wishing to make use of artificial

procreation concerned their most intimate sphere and therefore the

legislature should show particular restraint in regulating these matters.

43. All the arguments raised by the Government in defence of the

impugned legislation were directed against artificial procreation in general

and were therefore not persuasive when it came to accepting some

procreation techniques while rejecting others. The risk of exploitation of

female donors, to which the Government referred, was not relevant in

circumstances such as those in the present case. To combat any potential

abuse in the Austrian situation, it was enough to forbid remunerated ova or

sperm donation; such a prohibition existed in Austria.

44. The system applied under the Artificial Procreation Act was

incoherent and illogical, since heterologous forms of medically assisted

procreation were not prohibited in general but exceptions were made for

sperm donation in relation to specific techniques. The reasons for this

difference in treatment were not persuasive. Furthermore, it was not clear

why the legislation in force allowed for artificial insemination with donor

sperm, while it categorically prohibited ova donation. In particular the

distinction made between insemination with sperm from donors and in vitro

fertilisation with donor sperm was incomprehensible. Thus, the impugned

legislation constituted discrimination prohibited by Article 14.

2. The Government

45. The Government submitted that Article 14 complemented the other

substantive provisions of the Convention and its Protocols. Since the

applicability of Article 8 of the Convention was not disputed, and they

referred in this respect to the findings of the Austrian Constitutional Court,

Article 14, read in conjunction with those provisions, applied as well.

46. The Government submitted further that, according to the Court's

case-law, a difference in treatment was discriminatory for the purpose of

Article 14 if it had no objective and reasonable justification, that is, if it did

S. H. AND OTHERS v. AUSTRIA JUDGMENT 9

not pursue a “legitimate aim” or if there was not a reasonable relationship of

proportionality between the means employed and the aim sought to be

realised. However, Contracting States enjoyed a certain margin of

appreciation in assessing whether and to what extent differences in

otherwise similar situations justified different treatments in law. The

prohibition of in vitro fertilisation with sperm or ova from a donor was

objectively and reasonably justified. The prohibition which pursued the

legitimate aim of protecting the health and well-being of the women and

children concerned as well as safeguarding general ethics and the moral

values of society, was also proportionate.

47. Even though the right to respect for private life also comprised the

right to fulfil the wish for a child, it did not follow that the State was under

an obligation to permit indiscriminately all technically feasible means of

reproduction or even to provide such means. In making use of the margin of

appreciation afforded to them, the States had to decide for themselves what

balance should be struck between the competing interests in the light of the

specific social and cultural needs and traditions of their countries. The

Austrian legislature had struck a fair balance, taking into account all the

interests concerned. Such a balance allowed for medically assisted

procreation while at the same time providing for certain limits where the

current stage of medical and social development did not yet permit a legal

authorisation of in vitro fertilisation with the sperm or ova of third persons,

as desired by the applicants. Therefore the Artificial Procreation Act was

characterised by the intention to prevent negative repercussions and

potential misuses and to employ medical advances only for therapeutic

purposes and not for other objectives such as “selection” of children, as the

legislature could not and should not neglect the existing unease among large

sections of society about the role and possibilities of modern reproductive

medicine.

48. After thorough preparation the legislature had found an adequate

solution in a controversial area, taking into account human dignity, the well-

being of the child and the right to procreation. In vitro fertilisation opened

up far-reaching possibilities for a selective choice of ova and sperm, which

might finally lead to selective reproduction (Zuchtauswahl). This raised

essential questions regarding the health of children thus conceived and born,

touching especially upon the general ethics and moral values of society.

49. In the discussion in Parliament it had been pointed out that ova

donation might lead to problematic developments such as exploitation and

humiliation of women, in particular of those from an economically

disadvantaged background. Pressure might be put on a female donor who

otherwise would not be in a position to afford an in vitro fertilisation to

fulfil her own wish for a child.

50. In vitro fertilisation also raised the question of unusual relationships

in which the social circumstances deviated from the biological ones,

10 S. H. AND OTHERS v. AUSTRIA JUDGMENT

namely, the division of motherhood into a biological aspect and an aspect of

“carrying the child” and perhaps also a social aspect. Finally, one had also

to take into account that children had a legitimate interest in being informed

about their actual descent, which, with donated sperm and ova, would in

most cases be impossible. With the use of donated sperm and ova within the

framework of medically assisted procreation, the actual parentage of a child

was not revealed in the register of births, marriages and deaths and the legal

protective provisions governing adoptions were ineffective in the case of

medically assisted procreation. The reasons for allowing artificial

insemination, as set out in the explanatory report to the Government's bill on

the Artificial Procreation Act, were that because it was such an easily

applicable procreation method, compared with others, it could not be

monitored effectively. Also, this technique had already been in use for a

long time. Thus, a prohibition of this simple technique would not have been

effective and consequently would not constitute a suitable means of

pursuing the objectives of the legislation effectively.

51. The Government therefore concluded that the prohibition of in vitro

fertilisation with sperm or ova from a donor was objectively and reasonably

justified. The prohibition, which pursued the legitimate aim of protecting

the health and well-being of the women and children concerned as well as

safeguarding general ethics and the moral values of society, was also

proportionate. Accordingly, the applicants had not been discriminated

against.

B. Third party submissions by the German Government

52. The German Government submitted that under section 1(1) of the

German Embryo Protection Act (Embryonenschutzgesetz) it was a

punishable offence to place inside a woman an egg not produced by her.

53. The prohibition was supposed to protect the child's welfare by

ensuring the unambiguous identity of the mother. Biologically, only women

were capable of carrying a child to term. Splitting motherhood into a genetic

and a biological mother would result in two women having a part in the

creation of a child. This would be an absolute novelty in nature and in the

history of mankind. In legal, historical and cultural terms, the

unambiguousness of motherhood represented a fundamental and basic social

consensus and, for this reason alone, was considered indispensable by

German legislators. In addition, the relationship with the mother was

assumed to be important for the child's discovery of identity. As a result, the

child would have extreme difficulties in coping with the fact that in

biological terms two women had a part in his or her existence. Split

motherhood and the resulting ambiguousness of the mother's identity might

jeopardise the development of the child's personality and lead to

S. H. AND OTHERS v. AUSTRIA JUDGMENT 11

considerable problems in his or her discovery of identity. It was therefore

contrary to the child's welfare.

54. Another danger was that the biological mother, being aware of the

genetic background, might hold the egg donor responsible for any illness or

handicap of the child and reject him or her. A conflict of interests between

the genetic and biological mother could unfold to the detriment of the child.

For the donor, making ova available was a complicated and invasive

procedure which might result in a physical and psychological burden and a

medical risk for the donor. Another conflict which might arise and strain the

genetic and biological mothers' relationships with the child was that a

donated egg might result in the recipient getting pregnant while the donor

herself failed to get pregnant by means of in vitro fertilisation.

55. For the aforementioned reasons, split motherhood was considered to

be a serious threat to the welfare of the child which justified the existing

prohibitions under the Embryo Protection Act.

C. The Court's assessment

1. Applicability of Article 14 in conjunction with Article 8

56. The Government accepted that Article 8 was applicable to the case

and consequently they did not dispute the applicability of Article 14 of the

Convention. In this respect they referred to the findings of the

Constitutional Court which, in its judgment of 14 October 1999, held that

the decision of spouses or a cohabiting couple to conceive a child and to

make use for that end of medically assisted procreation techniques fell

within the sphere of protection of Article 8.

57. The applicants agreed with the Government as to the applicability of

Article 14 read in conjunction with Article 8 of the Convention.

58. The Court reiterates that the notion of “private life” within the

meaning of Article 8 of the Convention is a broad concept which

encompasses, inter alia, the right to establish and develop relationships with

other human beings (see Niemietz v. Germany, judgment of 16 December

1992, Series A no. 251-B, p. 33, § 29), the right to “personal development”

(see Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001-I) or

the right to self-determination as such (see Pretty v. the United Kingdom,

no. 2346/02, § 61, ECHR 2002-III). It encompasses elements such as names

(see Burghartz v. Switzerland, judgment of 22 February 1994, Series A

no. 280-B, p. 28, § 24), gender identification, sexual orientation and sexual

life, which fall within the personal sphere protected by Article 8 (see, for

example, Dudgeon v. the United Kingdom, judgment of 22 October 1981,

Series A no. 45, pp. 18-19, § 41, and Laskey, Jaggard and Brown v. the

United Kingdom, judgment of 19 February 1997, Reports of Judgments and

Decisions 1997-I, p. 131, § 36), and the right to respect for the decisions

12 S. H. AND OTHERS v. AUSTRIA JUDGMENT

both to have and not to have a child (see Evans v. the United Kingdom

[GC], no. 6339/05, § 71, ECHR 2007-IV).

59. In the case of Dickson v. the United Kingdom, which concerned the

refusal of facilities for artificial insemination to the applicants, a prisoner

and his wife, the Court found that Article 8 was applicable in that the

artificial insemination facilities at issue concerned their private and family

lives which notions incorporate the right to respect for their decision to

become genetic parents (Dickson v. the United Kingdom [GC],

no. 44362/04, § 66, ECHR 2007-XIII with further references).

60. The Court therefore considers that the right of a couple to conceive a

child and to make use of medically assisted procreation for that end comes

within the ambit of Article 8, as such a choice is clearly an expression of

private and family life. Article 8 of the Convention therefore applies to the

present case.

61. With regard to Article 14, which was relied on in the present case, the

Court reiterates that it only complements the other substantive provisions of

the Convention and the Protocols thereto. It has no independent existence

since it has effect solely in relation to “the enjoyment of the rights and

freedoms” safeguarded by those provisions (see, among many other

authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003-VIII).

The application of Article 14 does not necessarily presuppose the violation

of one of the substantive rights protected by the Convention. It is necessary

but it is also sufficient for the facts of the case to fall “within the ambit” of

one or more of the Articles of the Convention (see Petrovic v. Austria,

judgment of 27 March 1998, Reports 1998-II, § 22 and Burden v. United

Kingdom [GC], no. 13378/05 §58, ECHR 2008-...).

62. Since the applicants complain that they are victims of a difference in

treatment which lacks objective and reasonable justification as required by

Article 14 of the Convention, that provision, taken in conjunction with

Article 8, is applicable.

2. Compliance with Article 14 in conjunction with Article 8

63. The applicants claim to be in a similar or analogous position to other

couples who wish to avail themselves of medically assisted procreation

techniques but who, owing to their medical condition, do not need ova

donation or sperm donation for in vitro fertilisation. The applicants

therefore were subject to a difference in treatment. Regard must be had to

the aim behind that difference in treatment and, if the aim was legitimate, to

whether the different treatment was justified.

64. The Court reiterates that, for the purposes of Article 14, a difference

in treatment is discriminatory if it has no objective and reasonable

justification, which means that it does not pursue a “legitimate aim” or that

there is no “reasonable proportionality between the means employed and the

aim sought to be realised” (see, inter alia, Petrovic, cited above, § 30; and

S. H. AND OTHERS v. AUSTRIA JUDGMENT 13

Salgueiro da Silva Mouta v. Portugal, no. 33290/96, § 29...,

ECHR 1999-IX). In that connection the Court observes that the Convention

is a living instrument, to be interpreted in the light of present-day conditions

(see, inter alia, Johnston and Others v. Ireland, 18 December 1986, § 53,

Series A no. 112).

65. The Court reiterates further that Contracting States enjoy a margin of

appreciation in assessing whether and to what extent differences in

otherwise similar situations justify a different treatment (see Van Raalte v.

the Netherlands, 21 February 1997, § 39, Reports of Judgments and

Decisions 1997-I). The scope of this margin will vary according to the

circumstances, the subject matter and the background (see Petrovic, cited

above, § 38).

66. The applicants submitted that because of the special importance of

the right to found a family and the right to procreation, the Contracting

States enjoyed no margin of appreciation at all in regulating these issues.

67. In the Government's view the Austrian legislator, in devising the

framework for artificial procreation and for deciding in that context which

procreation techniques were allowed, had a particularly wide margin of

appreciation which was a decisive element in assessing whether a difference

of treatment in otherwise similar situations pursued a legitimate aim

68. The Court notes that in the field of medically assisted procreation

there is no uniform approach to this question among the State Parties to the

Convention (see Council of Europe, Medically Assisted Procreation and the

Protection of the Human Embryo – Comparative Study on the Situation in

39 States, June 1998, CDBI/INF (98) 8). Medically assisted procreation is

regulated in detail in some countries, to a certain extent in others and in

further countries not at all. If legislation exists in a country, there is a broad

variety of techniques which are allowed and forbidden. As far as can be

seen, the same situation as in Austria exists under German law. Donation of

sperm is prohibited in Italy, Lithuania and Turkey, while donation of ova is

prohibited in Croatia, Germany, Italy, Lithuania, Norway, Switzerland and

Turkey.

69. Since the use of IVF treatment gives rise to sensitive moral and

ethical issues against a background of fast-moving medical and scientific

developments, and since the questions raised by the case touch on areas

where there is no clear common ground amongst the Member States, the

Court considers that the margin of appreciation to be afforded to the

respondent State must be a wide one (see X, Y and Z v. the United Kingdom,

22 April 1997, § 44, Reports of Judgments and Decisions 1997-II). The

State's wide margin in principle extends both to its decision to intervene in

the area and, once having intervened, to the detailed rules it lays down in

order to achieve a balance between the competing public and private

interests (see Evans, cited above § 75). However, the differences in the

approaches adopted by the Contracting States do not, as such, make any

14 S. H. AND OTHERS v. AUSTRIA JUDGMENT

solution reached by a legislature acceptable. It does not absolve the Court

from carefully examining the arguments discussed in the legislative process

and from examining whether the arguments advanced by the Government

for justifying the difference of treatment in issue are relevant and sufficient.

In doing so the Court finds that the situation of the first and second

applicants and that of the third and fourth applicants have to be examined

separately.

a. The Third and Fourth Applicants (ova donation)

70. The third applicant is completely infertile and does not produce ova

at all while her husband, the fourth applicant, can produce sperm fit for

procreation. It is not in dispute that owing to their medical conditions only

in vitro fertilisation with the use of ova from a donor would allow the

applicant couple to fulfil their wish for a child of which at least one of the

applicants is the genetic parent. However the prohibition of heterologous

artificial procreation techniques for in vitro fertilisation laid down by

section 3(1) of the Artificial Procreation Act, which prohibits sperm

donation rules out this possibility. There is no exception to this rule.

71. The Court has established in its case-law that, in order for an issue to

arise under Article 14, there must be a difference in the treatment of persons

in relevantly similar situations (D.H. and Others v. the Czech Republic

[GC], no. 57325/00, § 175, ECHR 2007). Such a difference in treatment is

discriminatory if it has no objective and reasonable justification; in other

words, if it does not pursue a legitimate aim or if there is not a reasonable

relationship of proportionality between the means employed and the aim

sought to be realised. The Contracting State enjoys a margin of appreciation

in assessing whether and to what extent differences in otherwise similar

situations justify a different treatment (Stec and Others v. the United

Kingdom [GC], nos. 65731/01 and 65900/01, §§ 51-52, ECHR 2006-VI;

Burden, cited above, § 60).

72. Thus, the Court has to examine whether the difference in treatment

between the third and fourth applicants and a couple which, for fulfilling its

wish for a child may make use of artificial procreation techniques without

resorting to ova donation, has an objective and reasonable justification, that

is, if it does pursue a legitimate aim or if there is a reasonable relationship of

proportionality between the means employed and the aim sought to be

realised.

73. The Government argued that the prohibition of ova donation for in

vitro fertilisation adopted by the Austrian legislature pursued a legitimate

aim and was proportionate. In their view the Austrian legislature struck a

fair balance between the public and private interests involved. They argue

that the legislature had to set certain limits on the possibilities offered by the

medical techniques of artificial procreation because it had to take account of

the morally and ethically sensitive nature and unease existing among large


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AUTORE

Atreyu

PUBBLICATO

+1 anno fa


DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
il documento riporta il testo della sentenza della Corte di Strasburgo contro l'Austria in materia di procreazione medicalmente assistita in rapporto alla non discriminazione delle coppie sterili.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.

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