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Tuesday, May 21, 2024 | Back issues
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European Rights Court Says Austria Can Ban IVF

(CN) - Austria has been acting within bounds by prohibiting sperm and egg donations to infertile couples who want to have a baby, Europe's human rights court ruled, mere weeks after the EU's high court slammed the use of stem cells for commercial research purposes.

In terms of artificial procreation, Austrian law allows sperm to be donated only from a spouse, and only for in-vivo - and not in-vitro - fertilization. Two Austrian couples - one in which a woman was infertile, and the other with an infertile man - challenged the legislation as discriminatory and violating the right to family and private life.

The Austrian court in 1999 ruled that the laws did interfere with family life, but that this was justified to prevent "unusual" relations - such as a child with two mothers, one biological and one surrogate - and to prevent the exploitation of poor women who may donate ova.

The couples lodged a complaint with the European Court of Human Rights in 2000, and 10 years later, a chamber judgment issued a majority ruling that the Austrian laws were indeed discriminatory and violated family rights.

Austria appealed, and the grand chamber of the Strasbourg-based court held a trial - including arguments submitted by Italy and Germany - this past February.

Of the 17 judges comprising the grand chamber, 12 united to overturn the lower chamber's ruling.

The court said that in-vitro fertilization involves "sensitive moral and ethical issues against a background of fast-moving medical and scientific developments," and that the current EU legal framework, for example, does not cover surrogacy.

It also noted, however, that the law does not bar Austrian couples from going abroad to receive IVF treatment.

Austria had not exceeded its "margin of appreciation" in the ban, pointing out that the country could change its legislative approach in the future, according to the majority opinion.

The rights court's decision aligns with a trend in case law of its sister tribunal, the Court of Justice of the European Union, which typically allows each member state to legislate its own solutions to difficult issues.

A recent Court of Justice decision, however, made waves when it ordered a general ban on patenting research processes involving stem cells.

In the decision on Austria's law, four of the human rights court judges said the ban on IVF treatment does violate the right to family life. The dissent says that the ability of couples to go abroad for such treatment does not resolve the issue.

One judge issued a separate, concurring opinion.

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