A ruling by the European Court of Human Rights that access to Assisted Human Reproduction like IVF is a ‘human right’ is being appealed to the Grand Chamber of the Court.

The ruling last April found that an Austrian law banning sperm and ova donation for In Vitro Fertilisation was “unjustified” and constituted a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for family life) of the European Convention on Human Rights.

The judgement has been attacked by pro-family groups on the grounds that it creates an unqualified right to access fertility treatment services regardless of the rights of children to be raised by their own mother and father.

It means that single women, single men and same-sex couples, as well as married opposite-sex couples all have an equal right to use sperm or egg donations to have children. The case was called S.H. and Others v. Austria,

The decision was based on the Court finding a “right of a couple to conceive a child and to make use of medically assisted procreation for that end”.

It has also been criticised for interfering in the sovereignty of member-states of the Council of Europe.

Austria has now appealed the ruling to the Grand Chamber. It has been joined by Germany as a third party.

In its amicus brief, the German government said that the prohibition of IVF via egg donation is aimed at protecting the child’s welfare by ensuring the unambiguous identity of the mother.

In addition, Germany recalled that “biologically, only women are 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 its April ruling the Court said the “wish for a child” is a “particularly important facet of an individual’s existence”, and therefore the margin of appreciation “allowed” to the State in this area must be “restricted”; i.e. the State’s sovereignty to rule on this matter is strictly limited

The case concerns two couples living in Austria. In the first case, in order to have a child, the couple would need In Vitro Fertilisation with a sperm donation. This means that only the mother would be the genetic parent of the child.

In the case of the other couple, both are completely sterile: they would need In Vitro Fertilisation with both a sperm and an egg donation. There would be no genetic link between the child and his parents.

The Austrian Artificial Procreation Act prohibits IVF when the embryo is conceived with an ova or/and sperm from a donor. The ova and sperm must come from the couple themselves.

The Act permits the use of sperm from a donor but only for an in utero fertilisation process.

The couples lodged an application before the European Court on 8th May 2000, alleging in particular that the provision of the Austrian Artificial Procreation Act prohibiting the use of donor ova and sperm for in vitro fertilisation violates their rights.

In particular, the applicants claimed that it would violate their right to privacy (art.8), and their right to not suffer from discrimination in the access to artificial reproduction techniques (art. 14).

In regard to “discrimination”, the applicants complained that they are victims of a difference in treatment which lacks objective and reasonable justification comparing their situation 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.”