The Grand Chamber of the European Court of Human Rights (ECHR) has heard arguments from Austria and third parties against donor IVF in an appeal against a ruling of the Court last April.

The Court had previously found that Austria’s ban on sperm and egg donation for IVF violated the European Convention on Human Rights. IVF by egg or sperm donation is also called ‘heterologous’ IVF as distinct from ‘homologous’ IVF which uses the egg and sperm of the commissioning couple.

The German and Italian governments have also both decided to intervene before the Court in support of Austria.

One of the groups intervening on the side of Austria is the European Centre for Law and Justice (ECLJ). Dr Grégor Puppinck, director of the ECLJ  says the case is of primary importance.

He believes that the original ECHR ruling “questions the very definition of the family”.

Two applicants complained that the Austrian’s government’s prohibition of sperm and ova donation for IVF violated their right to respect to family life under Article 8.

They said the difference in treatment compared to couples who can use medically-assisted procreation techniques without ova or sperm donation for in vitro fertilisation amounted to a discriminatory treatment, in violation of Article 14.

In its initial ruling, the Court affirmed that the “wish for a child” is protected by the European Convention. It went on to hold that the fulfilment of this wish through artificial procreation techniques should not be prevented by ‘unjustified discrimination’, and that Austrian legislation should be coherent.

It rejected all the arguments of the Austrian government explaining why it is coherent and reasonable to distinguish between homologous and heterologous IVF. The Court also said that “concerns based on moral considerations or on social acceptability are not in themselves sufficient reasons for a complete ban on a specific artificial procreation technique such as ova donation”

They added that the preservation of the model of the family based on a biological and genetic link is not a legitimate concern.

In response to the Court’s initial ruling, the Austrian representative drew attention to the respect of the principle of subsidiarity with regard to the Convention of Human Rights.

She explained the need to take into account the consequences of IVF on all parties involved, including on the potential donors.

Furthermore, she outlined the lack of quality studies on the long term consequences of IVF and that it is justified for the Austrian legislator to keep a careful attitude towards new biomedical techniques.

The applicants, arguing that the original ruling should stand, said that the Austrian IVF legislation discriminates between men and women because it allows donation of sperm, but not of ova.

The applicants also suggested that the creation of children through donor IVF was comparable to the adoption process.