Ralf Müller-Terpitz

Assistierte Reproduktionsverfahren im Lichte der Europäischen Menschenrechtskonvention

Rubrik: Abhandlungen
Archiv des Völkerrechts (AVR)

Jahrgang 51 () / Heft 1, S. 42-71 (30)

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The article deals with legal problems connected to modern reproductive techniques, illustrated by the current jurisdiction of the ECtHR in the case of S.H. and Others vs. Austria and subsequent decisions such as Costa and Pavan vs. Italy. It is being pointed out to what extent the prohibition of modern reproductive medicine – specifically the Austrian Reproductive Medicine Act (FMedG) and its § 3 – violates fundamental rights under the ECHR: Two couples sued for the violation of their rights (Articles 8, 12 and 14 ECHR) at the ECtHR. One couple wanted to give birth to a child by using heterologous in vitro fertilization (IVF) with donated sperm; the other couple wanted to meet their desire to have children by using heterologous IVF with donated egg cells. Both methods were forbidden by § 3 FMedG: § 3 section 1 FMedG only allows the use of egg cells and sperm of spouse or cohabitant for a medically supported reproduction, § 3 section 2 FMedG tolerates an exception concerning heterologous insemination. The first deciding chamber of the ECtHR judged that the ECHR was violated by § 3 FMedG. It considered that a state should not be obliged to allow and to legally regulate artificial fertilization. If, however, the decision to permit this reproductive technology once is made, the created legal fundament has to be formed in a consistent way. The chamber came to its decision by finding a balance between the individualś fundamental rights on the one hand and the margin of appreciation of the national legislature and the risks related to the new reproductive technologies on the other hand. According to the deciding chamber the margin of appreciation was always a limited one if there was a particularly important aspect connected with the existence or individuality of a person. Due to the implications of this decision, the Austrian government made a request for referral for decision to the Grand Chamber of the ECtHR. The Grand Chamber decided that the FMedG did not violate the ECHR and that the term »private life« within the meaning of Article 8 ECHR includes the right to respect the decision to become parents or not – also by using medically assisted reproductive methods. Although the margin of appreciation is limited when it comes to fundamental aspects of the existence or identity of a person it was even wider if there is no consensus concerning the balance of the conflicting interests between the member states of the Council of Europe. The aforementioned judgment is evaluated by – inter alia – coming to the conclusion that deciding this case only within the scope of protection of Article 8 ECHR and not having a look at the right guaranteed in Article 14 ECHR is too one-sided.

Ralf Müller-Terpitz ist Inhaber des Lehrstuhls für Öffentliches Recht, Recht der Wirtschaftsregulierung und Medien an der Universität Mannheim.