STRASBOURG, France, November 4, 2011 ( – In a 13-4 vote yesterday, the European Court of Human Rights (ECHR) reversed a decision by a lower section of the court, and affirmed that Austria’s prohibition of the use of ova and sperm from third parties for in vitro fertilization does not violate Article 8 of the European Convention on Human Rights, which speaks of the “right to respect for private and family life.”

The decision was hailed as being of “fundamental importance” and “quite exceptional” by the pro-life European Centre for Law and Justice (ECLJ).

Grégor Puppinck, director of the ECLJ said that the decision respects national sovereignty, and “may indicate a Court’s new tendency to exercise ‘self restraint’ from judicial activism on ideological matters.”

During the proceedings, both the Italian and German governments intervened before the Grand Chamber in support of Austria’s ban on sperm and ova donation for IVF, which ensures that couples cannot bear a genetically unrelated child.

The Italian government interpreted Article 8 of the Convention as not protecting a person’s or a couple’s “right” to conceive a child and to make use of medically assisted procreation for that purpose. Because of this, they argued, Contracting States have “no positive obligation […] to make available to infertile couples all existing medical techniques of procreation.”

The German government observed that under the German Embryo Protection Act (Embryonen­schutzgesetz), it is a “punishable offence to place inside a woman an egg not produced by her.” For the German government, “splitting motherhood” into a genetic and a biological mother constitutes a “serious threat” to the welfare of the child, thus justifying Austria’s existing prohibition.

In the ruling, the Grand Chamber recognized as legitimate Austrian’s legislative conviction that “medically assisted procreation should take place similarly to natural procreation,” and that the law should be maintained to avoid 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.”

Recognizing the specific problem that can result in such a Solomonian dilemma, the Grand Chamber clarified that “splitting of motherhood between a genetic mother and the one carrying the child differs significantly from adoptive parent-child relations.”

In the proceedings, the Court accepted the argument of the Austrian Government that artificial procreation is “a controversial issue” in Austria that raises “complex questions of a social and ethical nature” which have to take into consideration “human dignity, the well-being of children thus conceived and the prevention of negative repercussions or potential misuse.”

Despite the pro-child and pro-family judgment, the ECLJ said it was still concerned that the Grand Chamber understood “a couple to conceive a child” as a “right” protected by Article 8 and thus allowed the couple to “make use of medically assisted procreation for that purpose.”

The ECLJ had argued, along with the Italian government, that there is no “right of a couple to conceive a child and to make use of medically assisted procreation” under the Convention. They argued for the “right to attempt” to conceive a child, “otherwise, in an Orwellian style, the State would ultimately have to provide for the children,” said ECLJ in a press release.