The European Court of Human Rights has upheld an Austrian ban on sperm and ova donations. By a vote of 13 to 4, the Court’s Grand Chamber declared that the ban did not violate the European Convention on Human Rights.

The European Court of Human Rights has upheld an Austrian ban on sperm and ova donations. By a vote of 13 to 4, the Court’s Grand Chamber declared that the ban did not violate the European Convention on Human Rights.

Grégor Puppinck, of the European Centre for Law and Justice, which intervened as a third party in the case, was delighted with the decision because it protected the notions of natural procreation and the natural family. He sees it as “a victory for ethics and bioethics over a purely immoral and utilitaristian vision of science and of human beings.”

Some European countries still have legal concepts based more on natural law than on human rights. For instance, the ECHR insisted that children have a right to know their parents: 

“medically assisted procreation should take place similarly to natural procreation, and in particular that the basic principle of civil law – mater semper certa est [the mother is always certain] – should be maintained by avoiding the possibility that two persons could claim to be the biological mother of one and the same child and to avoid disputes between a biological and a genetic mother in the wider sense.” 

It also declared – over-ruling a lower court in Austria – that moral considerations or social acceptability could be taken into account in national legislation. IVF, it concluded, was:

“a controversial issue in Austrian society, raising complex questions of a social and ethical nature on which there was not yet a consensus in the society and which had to take into account human dignity, the well-being of children thus conceived and the prevention of negative repercussions or potential misuse.”

A number of European countries are relatively restrictive about IVF. Apart from Austria, sperm donation is banned in Italy, Lithuania and Turkey. Egg donation is banned in these countries and in Croatia, Germany, Norway and Switzerland. The Court was not completely sympathetic to “traditional” legal notions. It also said that Austria should bear in mind that medicine and the law are evolving rapidly in this area. ~ ECLJ, Nov 3

Michael Cook
European Union
IVF
law

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