GRAND CHAMBER

CASE OF S.H. AND OTHERS v. AUSTRIA

(Application no. 57813/00)

JUDGMENT

STRASBOURG

3 November 2011

In the case of S.H. and Others v. Austria,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Jean-Paul Costa, President,
Nicolas Bratza,
Françoise Tulkens,
Josep Casadevall,
Elisabeth Steiner,
Elisabet Fura,
Danutė Jočienė,
Ján Šikuta,
Dragoljub Popović,
Ineta Ziemele,
Päivi Hirvelä,
Mirjana Lazarova Trajkovska,
Ledi Bianku,
Nona Tsotsoria,
Işıl Karakaş,
Guido Raimondi,
Vincent A. De Gaetano, judges,
and Michael O’Boyle, Deputy Registrar,

Having deliberated in private on 23 February and 5 October 2011,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 57813/00) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Austrian nationals, Ms S.H., Mr D.H., Ms H.E.‑G. and Mr M.G. (“the applicants”), on 8 May 2000. The President of the Grand Chamber acceded to the applicants’ request not to have their names disclosed (Rule 47 § 3 of the Rules of Court).

2. The applicants were represented by Mr H.F. Kinz and Mr W.L. Weh, lawyers practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

3. The applicants alleged in particular that the provisions of the Austrian Artificial Procreation Act prohibiting the use of ova from donors and sperm from donors for in vitro fertilisation, the only medical techniques by which they could successfully conceive children, violated their rights under Article 8 of the Convention read alone and in conjunction with Article 14.

4. The application was allocated to the First Section of the Court (Rule 52 § 1). On 15 November 2007 it was declared partly admissible by a Chamber of that Section, composed of Christos Rozakis, Loukis Loucaides, Nina Vajić, Anatoly Kovler, Elisabeth Steiner, Khanlar Hajiyev, Giorgio Malinverni, judges, and Søren Nielsen, Section Registrar. On 11 March 2010 a Chamber of that Section, composed of Christos Rozakis, Nina Vajić, Anatoly Kovler, Elisabeth Steiner, Khanlar Hajiyev, Sverre Erik Jebens, Giorgio Malinverni, judges, and André Wampach, Deputy Section Registrar, following a hearing on the merits (Rule 54 § 3), delivered a judgment in which it held, by six votes to one, that there had been a violation of Article 14 of the Convention read in conjunction with Article 8 as regards the first and second applicants, by five votes to two, that there had been a violation of those provisions as regards the third and fourth applicants and, unanimously, that it was not necessary to examine the application under Article 8 alone.

5. On 4 October 2010, following a request by the Government dated 1 July 2010, the panel of the Grand Chamber decided to refer the case to the Grand Chamber in accordance with Article 43 of the Convention.

6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.

7. The applicants and the Government each filed observations (Rule 59 § 1). In addition, third-party comments were received from the German and Italian Governments and from the non-governmental organisations Hera ONLUS, the European Centre for Law and Justice, and Aktion Leben, who had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).

8. A hearing took place in public in the Human Rights Building, Strasbourg, on 23 February 2011 (Rule 59 § 3).

There appeared before the Court:

(a) for the Government
MsB. Ohms,Deputy Agent,
MrM. Stormann,
MrG. Doujak, Advisers;

(b) for the applicants
MrH.F. Kinz,
MW.L. Weh, Counsel,

MrS. Harg,
MrC. Eberle, Advisers.

The Court heard addresses by Mr Weh, Mr Kinz and Ms Ohms.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

9. The applicants were born in 1966, 1962, 1971 and 1971 respectively and live in L. and R.

10. The first applicant is married to the second applicant and the third applicant to the fourth applicant.

11. The first applicant suffers from fallopian-tube-related infertility (eileiterbedingter Sterilität). She produces ova, but, due to her blocked fallopian tubes, these cannot pass to the uterus, so natural fertilisation is impossible. The second applicant, her husband, is infertile.

12. The third applicant suffers from agonadism (Gonadendys­genesie), which means that she does not produce ova at all. Thus, she is completely infertile but has a fully developed uterus. The fourth applicant, her husband, in contrast to the second applicant, can produce sperm fit for procreation.

13. On 4 May 1998 the first and third applicants lodged an application (Individual­antrag) with the Constitutional Court (Verfassungs­gerichtshof) for a review of the constitutionality of sections 3(1) and 3(2) of the Artificial Procreation Act (Fortpflanzungs­medizingesetz – see paragraphs 27-34 below).

14. The applicants argued before the Constitutional Court that they were directly affected by the above provisions. The first applicant submitted that she could not conceive a child by natural means; thus, the only way open to her and her husband would be in vitro fertilisation using sperm from a donor. That medical technique was, however, ruled out by sections 3(1) and 3(2) of the Artificial Procreation Act. The third applicant submitted that she was infertile. As she suffered from agonadism, she did not produce 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 embryo transfer, 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.

15. The first and third applicants argued before the Constitutional Court that the impossibility of using the above-mentioned medical techniques for medically assisted conception amounted to 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 Austrian Federal Constitution, which guarantees equal treatment.

16. On 4 October 1999 the Constitutional Court held a public hearing in which the first applicant, assisted by counsel, participated.

17. On 14 October 1999 the Constitutional Court decided on the first and third applicants’ request. It 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.

18. As regards the merits of their complaints, the Constitutional Court considered that Article 8 of the Convention 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.

19. 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 for 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 from the cohabiting couple itself – and methods which did not involve a particularly sophisticated technique and were not too far removed from natural means of conception would be allowed. The aim of the legislature was to avoid the forming of unusual family relationships, such as a child having more than one biological mother (a genetic mother and one carrying the child), and to avoid the risk of the exploitation of women.

20. 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 of society and entailed the risk of commercialisation and selective reproduction (Zuchtauswahl).

21. However, applying the principle of proportionality under Article 8 § 2 of the Convention, 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 essentially on whether a homologous technique (having recourse to the gametes of the couple) or heterologous technique (having recourse to gametes external to the couple) was used.

22. In the Constitutional Court’s view, the legislature 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. The choices the legislature had made reflected the then 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 legislature would have to take into account in the future.

23. The legislature 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 donor sperm. 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. However, the interests of the individuals concerned had to give way to the above-mentioned public interest when a child could not be conceived by having recourse to homologous techniques.

24. The Constitutional Court also found that for the legislature to prohibit heterologous techniques, while accepting as lawful only homologous techniques, was not in breach of the constitutional principle of equality which prohibits discrimination. 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 legislature was not bound to apply strictly identical regulations to both. Also, the fact that insemination in vivo with donor sperm was allowed while ovum donation was not, did not amount to discrimination since sperm donation was not considered to give rise to a risk of creating unusual family relationships which might adversely affect the well-being of a future child.

25. 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.

26. This decision was served on the first and third applicants’ lawyer on 8 November 1999.

II. RELEVANT LEGAL MATERIALS

A. Domestic law: the Artificial Procreation Act

27. The Artificial Procreation Act (Fortpflanzungs­medizingesetz, Federal Law Gazette no. 275/1992) regulates the use of medical techniques for inducing conception of a child by means other than copulation (section 1(1)).

28. 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)).

29. 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).

30. 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, namely if the spouse or male partner is infertile, sperm from a third person may be used for artificial insemination when introducing sperm into the reproductive organs of a woman (section 3(2)). This is called in vivo fertilisation. In all other circumstances, and in particular for the purpose of in vitro fertilisation, the use of donor sperm is prohibited.

31. Under section 3(3), ova or viable cells may only be used for the woman from whom they originate. Thus, ovum donation is always prohibited.

32. 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).

33. 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-Fertilisation eingerichtet wird – Federal Law Gazette, Part I, no. 180/1999) in order to subsidise in vitro fertilisation treatment allowed under the Artificial Procreation Act.

34. The issue of maternity and paternity is regulated in the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch). Under Article 137b, introduced at the same time as the entry into force of the Artificial Procreation Act, the mother of a child is the woman who has given birth to that child. As regards paternity, Article 163 provides that the father of a child is the male person who has had sexual intercourse with the mother within a certain period of time (180 to 300 days) before the birth. If the mother has undergone medically assisted procreation treatment using sperm from a donor, the father is the person who has given his consent to that treatment, that is, the spouse or male partner. A sperm donor can in no circumstances be recognised as the father of the child.

B. The position in other countries

35. The following overview of the law and practice concerning artificial procreation in Europe is based essentially on the following documents: “Medically Assisted Procreation and the Protection of the Human Embryo: Comparative Study on the Situation in 39 States” (Council of Europe, 1998); the replies by the member States of the Council of Europe to the Steering Committee on Bioethics’ “Questionnaire on access to medically assisted procreation (MAP) and on right to know about their origin for children born after MAP” (Council of Europe, 2005); and a survey carried out in 2007 by the International Federation of Fertility Societies.

36. From this material it would appear that in vitro fertilisation treatment was (as at 2007) regulated by primary or secondary legislation in Austria, Azerbaijan, Bulgaria, Croatia, Denmark, Estonia, Finland, 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, Ireland, Lithuania, Malta, Poland, Serbia and Slovakia such treatment was governed by clinical practice, professional guidelines, royal or administrative decree or general constitutional principles.

37. The Council of Europe study sets out, in particular, 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 a sperm donor, ovum donation, ovum and sperm donation, embryo donation and intracytoplasmic sperm injection (an in vitro fertilisation procedure in which a single sperm is injected directly into an ovum).

38. It seems that among the countries which have regulated the issue of artificial procreation, sperm donation is currently prohibited in Italy, Lithuania and Turkey. All three countries do not permit heterologous assisted fertilisation. 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 ovum donation, this is prohibited in Croatia, Germany, Norway and Switzerland, in addition to the three countries mentioned above.

39. It further appears that in a number of countries, such as Cyprus, Luxembourg, Poland, Portugal and Romania, where the matter was not regulated (as at 2007), the donation of both sperm and ova is used in practice.

40. A comparison between the Council of Europe study of 1998 and the survey conducted by the International Federation of Fertility Societies in 2007 shows that in the field of medically assisted procreation legal provisions are developing quickly. In Denmark, France and Sweden, sperm and ovum 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 ovum donation. Since 2007, medically assisted procreation is also regulated by law in Finland allowing sperm and ovum donation.

C. Council of Europe instruments

41. Principle 11 of the principles adopted in 1989 by the Ad Hoc Committee of Experts on Progress in the Biomedical Sciences (CAHBI), the expert body within the Council of Europe which preceded the present Steering Committee on Bioethics, 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.”

42. The Council of Europe Convention on Human Rights and Biomedicine of 1997 does not deal with the question of donation of gametes, but forbids the use of medically assisted reproduction techniques to choose the sex of a child. 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.”

43. The Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin of 2002, which promotes the donation of organs, expressly excludes from its scope reproductive organs and tissues.

D. European Union instruments

44. Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on the setting of standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, which seeks to ensure the quality and safety aspects of human tissues and cells intended for human applications, provides in its Preamble as follows:

“12. This directive should not interfere with decisions made by member States concerning the use or non-use of any specific type of human cells, including germ cells and embryonic stem cells. If, however, any particular use of such cells is authorised in a member State, this directive will require the application of all provisions necessary to protect public health, given the specific risks of these cells based on the scientific knowledge and their particular nature, and guarantee respect for fundamental rights. Moreover, this directive should not interfere with provisions of member States defining the legal term ‘person’ or ‘individual’.”

THE LAW

I. THE GOVERNMENT’S PRELIMINARY OBJECTION

45. The Government argued, as they had done before the Chamber, that the second and fourth applicants, the husbands of the first and third applicants respectively, had failed to exhaust domestic remedies as required by Article 35 of the Convention because they had failed to lodge an application themselves with the Constitutional Court for review of the constitutionality of section 3 of the Artificial Procreation Act.

46. This was disputed by the applicants, who referred to the decision on admissibility of 15 November 2007 in which the Court rejected the Government’s objection of non-exhaustion and which, in their view, settled this matter definitively.

47. The Grand Chamber observes that the Chamber rejected the Government’s objection of non-exhaustion as regards the second and fourth applicants in its decision on admissibility of 15 November 2007. In that decision it stated as follows:

“The Court reiterates that the application of the rule of exhaustion must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, the Court has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. The rule is neither absolute nor capable of being applied automatically. In reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that the Court must take realistic account of the general legal and political context in which the remedies operate, as well as the personal circumstances of the applicant (see Menteş and Others v. Turkey, 28 November 1997, § 58, Reports of Judgments and Decisions 1997-VIII).

The Court observes that the first and third applicants applied to the Constitutional Court for a review of the constitutionality of section 3 of the Artificial Procreation Act. In these proceedings they showed that they had, together with their spouses, taken a firm decision to undergo a process of medically assisted procreation as given their medical condition natural conception of a child was not possible, and that they were therefore directly affected by the prohibition at issue. Although the second and fourth applicants, their spouses, did not participate in the proceedings before the Constitutional Court, their personal situation was intrinsically linked to that of their spouses. Thus, the Court finds it sufficient that the latter have instituted the proceedings and put their case and consequently also their spouses’ case before the competent domestic court.

The Court therefore concludes that all the applicants have exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention.”

48. The Grand Chamber does not see any reason to come to a different conclusion from the Chamber. Accordingly, the Government’s preliminary objection must be rejected.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

49. The applicants complained that the prohibition of heterologous artificial procreation techniques for in vitro fertilisation laid down by sections 3(1) and 3(2) of the Artificial Procreation Act had violated their rights under Article 8 of the Convention.

50. The relevant parts of Article 8 of the Convention provide:

“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 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. The Chamber judgment

51. In its judgment of 1 April 2010, the Chamber held that there had been a violation of Article 14 of the Convention read in conjunction with Article 8 in respect of the first and second applicants as well as in respect of the third and fourth applicants.

52. The Chamber found that Article 14 of the Convention read in conjunction with Article 8 was applicable to the case since the right of a couple to conceive a child and to make use of medically assisted procreation for that end came within the ambit of Article 8 as such a choice was clearly an expression of private and family life.

53. As regards compliance with Article 14, the Chamber observed that in view of the lack of a uniform approach to this question by the Contracting States and the nature of the sensitive moral and ethical issues involved, the Contracting States enjoyed a wide margin of appreciation in this field. This wide margin of appreciation in principle extended both to its decision to intervene in the area and, once having intervened, to the detailed rules it lay down in order to achieve a balance between the competing public and private interests. The Chamber examined the situation of the first and second applicants and the third and fourth applicants separately.

54. With regard to the situation of the third and fourth applicants, who needed ovum donation in order to fulfil their wish for a child, the Chamber found that concerns based on moral considerations or on social acceptability were not in themselves sufficient reasons for a complete ban on a specific artificial procreation technique in general and that only in exceptional circumstances would such a complete ban be a proportionate measure. The Chamber found that in respect of the risks of ovum donation invoked by the Government, such as the risk of the exploitation of women, particularly those from economically disadvantaged backgrounds, or the “selection” of children, the Artificial Procreation Act itself already contained sufficient safeguards. In respect of the other specific concerns indicated by the Government, such as the creation of unusual family relationships by splitting motherhood between a genetic mother and a biological mother, these problems could be overcome by enacting appropriate legislation. The Chamber therefore concluded that there had been a violation of Article 14 of the Convention read in conjunction with Article 8.

55. With regard to the situation of the first and second applicants, who needed sperm donation for in vitro fertilisation in order to fulfil their wish for a child, the Chamber observed, firstly, that this artificial procreation technique combined two techniques which, taken alone, were allowed under the Artificial Procreation Act, namely, in vitro fertilisation with ova and sperm of the couple itself on the one hand, and sperm donation for in vivo conception on the other hand. A prohibition of the combination of these lawful techniques thus required particularly persuasive arguments. Most of the arguments put forward by the Government were, however, not specific to sperm donation for in vitro fertilisation. As regards the Government’s argument that non-in vitro artificial insemination had been in use for some time, that it was easy to handle and its prohibition would therefore have been hard to monitor, the Chamber found that a question of mere efficiency carried less weight than the particularly important interests of the private individuals involved and concluded that the difference in treatment at issue was not justified. The Chamber concluded that there had been a violation of Article 14 of the Convention read in conjunction with Article 8 in that respect as well.

B. The parties’ submissions

1. The applicants

56. In the applicants’ view, Article 8 of the Convention was applicable in their case. They submitted further that the impugned legislation constituted a direct interference with their rights under Article 8 because, in the absence of such legislation, the medical treatment they were seeking – in vitro fertilisation with donated ova or sperm – would have been a common and readily available medical technique which had made considerable progress over the previous years and had become far more reliable than in the past. Thus, there was no question of a positive obligation, but of a classic case of interference, which was not necessary in a democratic society and was disproportionate.

57. 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 the most intimate sphere of their private life and therefore the legislature should show particular restraint in regulating these matters.

58. All the arguments raised by the Government were against artificial procreation in general and were therefore not persuasive when it came to allowing some procreation techniques while rejecting others. The risk of the 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, it would be sufficient to forbid remunerated ovum or sperm donation; such a prohibition already existed in Austrian legislation. Also, the argument that ovum donation led to unusual family relationships in which motherhood of a child conceived through artificial procreation was split between the genetic mother and the mother who gave birth to the child and led to emotional stress for the child was not persuasive, as today many children grew up in family situations in which they were genetically related to only one of the parents.

59. The applicants submitted further that the system applied under the Artificial Procreation Act was incoherent and illogical, since there was no blanket prohibition on heterologous forms of medically assisted procreation because exceptions were made for sperm donation in relation to specific techniques. The reasons for this difference in treatment were not persuasive. In this context, it should be noted that there existed a public fund for financing in vitro fertilisation, apparently because use of this technique was in the public interest, while at the same time severe restrictions were imposed on its use.

60. With regard to the legal situation of artificial procreation in the Contracting States, the applicants argued that there was now a consensus that ovum and sperm donation should be allowed. Thus, the prohibition of ovum and sperm donation under Austrian law was in breach of Article 8 of the Convention.

2. The Government

61. As regards the applicability of Article 8 of the Convention, the Government referred to the findings of the Constitutional Court that the private life aspect within the meaning of Article 8 § 1 also covered the desire of couples or life companions to have children as one of the essential forms of expression of their personality as human beings. They therefore accepted that Article 8 was applicable to the proceedings at issue.

62. In the Government’s view, the question whether the measure at issue should be deemed to be an interference by a public authority or an alleged breach of a positive duty could be left open because both obligations were subject to the same principles. In both instances a fair balance had to be struck between the competing private and public interests and in both contexts the State enjoyed a certain margin of appreciation, which, in the absence of a common standard established by the Contracting States, was a particularly wide one. In any event, the prohibition at issue had a legal basis in domestic law and pursued a legitimate aim, namely, the protection of the rights of others, in particular potential donors.

63. In the Government’s view, the central issue in the case was not whether there could be any recourse at all to medically and technically assisted procreation and what limits the State could set in that respect, but to what extent the State must authorise and accept the cooperation of third parties in the fulfilment of a couple’s wish to conceive a child. 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.

64. The Austrian legislature, taking into account all the interests concerned, had struck a fair balance in line with Article 8 of the Convention. Such a balance allowed for medically assisted procreation while at the same time providing for certain limits where the stage reached in medical and social development did not yet permit the legal authorisation of in vitro fertilisation with the sperm or ova of third persons, as desired by the female applicants. The Artificial Procreation Act was therefore characterised by the intention to prevent negative repercussions and potential misuse and to employ medical advances for therapeutic purposes only and not for other objectives such as the “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.

65. After thorough preparation the legislature had found an adequate solution for the matter which took 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 ultimately lead to selective reproduction (Zuchtauswahl). This raised fundamental questions regarding the health of children thus conceived and born, touching essentially upon the general ethical and moral values of society.

66. In the debate in Parliament it had been pointed out that ovum donation depended on the availability of ova and might lead to problematic developments, such as the exploitation and humiliation of women, in particular those from economically disadvantaged backgrounds. There was also the risk that pressure might be put on women undergoing in vitro fertilisation to provide more ova than strictly necessary for their own treatment to enable them to pay for it.

67. In vitro fertilisation also raised the question of unusual family 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. Lastly, account also had to be taken of the child’s legitimate interest in being informed about his or her actual descent, which, with donated sperm and ova, would in most cases be impossible. Where sperm or ova were donated 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 protective legal provisions governing adoptions were ineffective in the case of medically assisted procreation.

68. The reasons for allowing in vivo 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. That technique had also 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.

C. The third-party interveners

1. The German Government

69. 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 ovum not produced by her.

70. This prohibition was intended to protect the child’s welfare by ensuring the unambiguous identity of the mother. Splitting motherho