STRASBOURG, December 3, 2010 ( – Austria has won the right to defend its Artificial Procreation Act before the European Court of Human Rights (ECHR). Earlier this year, the court had issued a Chamber decision that found the country’s ban on the use of donated sperm and “ova” (gametes) to be “discriminatory” under the European Convention on Human Rights.

Last month, however, a five-judge panel decided to allow the country to appeal the ruling before the court’s Grand Chamber.

The European Centre for Law and Justice has asked for permission to intervene in the case, calling the decision “heavily problematic.” It presupposes, they said, the existence of a “right to have a child” and fails to respect Austria’s national sovereignty in bioethical issues.

In its April decision, the ECHR spoke of the “right of a couple to conceive a child and to make use of medically assisted procreation for that end.”

Bioethicists who oppose artificial procreation techniques have argued that there is no such thing as a “right to parenthood” since to be a parent requires a child. They argue that a child is a sovereign person and to presuppose that a parent has a “right” to acquire one reduces that child to the status of a commodity that can be claimed as the property of the parents.

The case before the ECHR involves two Austrian couples undertaking artificial procreation techniques, one of whom needed donated sperm and the other requiring both male and female donated gametes. The two couples launched a complaint to the Court that Austrian law was a “discriminatory” violation of their right to have children.

Under Austrian law, in vitro fertilization techniques are restricted to using the gametes provided by the couple, preserving the biological integrity of the family. The Act authorizes the use of sperm from a donor but only for an in utero fertilization – in other words, for artificial insemination.

The Court ruled that this law violates the couple’s rights under article 14 of the European Convention on Human Rights, on “prohibition of discrimination,” and article 8, “right to respect for family life.”

The Court said that the “wish for a child” is protected by the Convention, and that its fulfillment through artificial procreation techniques should not be prevented by “unjustified discriminations.”

The Court said that “moral considerations,” or concerns about the social acceptability, “are not in themselves sufficient reasons for a complete ban on a specific artificial procreation technique such as ova donation.”

Neither, it found, is the desire to preserve the “model of the family based on a biological and genetic link,” since “unusual family relations in a broad sense are well known to the legal orders of the Contracting States.”

The Austrian government, the Court ruled, must not be reluctant to permit new kinds of “unusual family relations” that “do not follow the typical parent-child relationship based on a direct biological link.”

Gregor Puppinck, Director of the ECLJ, said, however, that if neither moral nor concerns about biological integrity are sufficient grounds to ban an artificial procreation procedure, “what is the purpose of bioethics?”

In a media release, the ECLJ said that the Austrian government “has pursued the aim of protecting the health and well-being of the women and children concerned, as well as safeguarding general ethics and the moral values of society, preserving the biological link between the children and its parents and similarly with the natural procreation.”

The ECLJ “welcomes this referral and will ask the Court leave to intervene before the Grand Chamber.”


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