In the last year to 18 months the European Court of Human Rights (ECHR, pictured) had handed down several excellent decisions. The most famous is the Lautsi judgement in which it ruled that Italy could place crucifixes on the walls of state classrooms.

In another, it ruled that a prohibition on same-sex marriage did not violate the European Convention on Human Rights, and this week it ruled that a ban on the use of donor sperm or eggs does not violate the Convention.

Two Austrian couples had taken their Government to court because Austria bans the use of donated eggs. A lower chamber of the ECHR had ruled in their favour saying that the Austrian law violated Article 8 of Convention which guarantees the right of people to a private and family life, and Article 12 which guarantees the right to found a family.

The Grand Chamber has now overruled the lower chamber and has found that Austria, and other countries that are signatories to the convention have a right to ban the use of donor sperm, donor eggs or both and therefore Austria is not in breach of Article 8 and 12.

The court left open a door to a revision of this ruling in the future, however, in that it allowed that there might develop a new consensus among the signatory nations in favour of the use of donated gametes. No such consensus exists at this point on the matter.

Austria, Germany and Italy, among other countries, ban the use of donated eggs because they believe it is wrong to split motherhood between a biological mother (that is a surrogate mother), a genetic mother (that is the egg donor), and even a social mother (that is someone who is neither the surrogate mother nor the genetic mother but who raises the child).

Austrian law puts it like this: “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.”

In its submission to the court, Germany put the matter in the following terms: “Splitting motherhood into a genetic and a biological mother would result in two women having a part in the creation of a child and would run counter to the established principle of unambiguousness of motherhood which represented a fundamental and basic social consensus.

“Split motherhood was contrary to the child’s welfare because the resulting ambiguousness of the mother’s identity might jeopardise the development of the child’s personality and lead to considerable problems in his or her discovery of identity.”

One of the judges who ruled in favour of Austria was Malta’s Vincent de Gaetano. He delivered his own separate opinion in which he expressed things with his characteristic clarity.

With regard to arguments that Austria was in breach of Articles 8 and 12, he said: “While there is no doubt that a couple’s decision to conceive a child is a decision which pertains to the private and family life of that couple (and, in the context of Article 12, to the couple’s right to found a family), neither Article 8 nor Article 12 can be construed as granting a right to conceive a child at any cost. The ‘desire’ for a child cannot, to my mind, become an absolute goal which overrides the dignity of every human life.”

With regard to the notion that the consensus on the matter might change, and therefore the court’s opinion might change, he stated: “The present judgment suggests (see paragraph 106) that a “European consensus” on the subject matter under examination is an important consideration for determining whether or not there has been a violation of the Convention (in this case of Article 8).

“Again, this suggestion deflects attention from the necessity of asking whether a particular act or omission or limitation enhances or detracts from human dignity (apart from the fact that history teaches that “European consensus” has in the past led to acts of gross injustice both in Europe and beyond).

“Similarly, whether or not the Austrian parliament has undertaken to examine thoroughly “the rules governing artificial procreation, taking into account the dynamic developments in science or society” (see paragraph 117) is neither here nor there.”

As for Ireland, we have no law to speak of governing this whole arena. When we get around to drafting one, we should look to the example of countries like Germany, Austria and Italy.