Whether one may obtain access to assisted reproduction services depends completely on the legislation of the state one resides in, and as noted above in the case ofGas and Dubois v. France, “reproductive tourism” may take place depending on whether certain forms of assisted reproduction are not available.
In many states, single women and women with female partners may obtain these services in the private sector at their own cost. State-subsidised assisted reproduction services tend to be available only for opposite-sex couples, and in some states, they need to be married. A completely different question is what forms of assisted reproduction are available. This is a dynamic field of study, as both technological innovations and politico-legal processes influence it. New forms of treatment may be studied and invented, but whether they are legally available or not is a different question. Surrogacy, in turn, acts as the extreme form of assisted reproduction, as it does not concern merely the use of donated eggs of sperm, but the use of the bodily functions of a third party to produce a living person. The use of surrogate mothers is rare in Western Europe due legal restrictions, and commercial services in this area may generally be obtained, for example in the United States and some Eastern European and Asian States.
The Grand Chamber judgement case ofS.H. and others v. Austria from 201187 touched upon the use of donated eggs and sperm in assisted reproduction. The applicants were two couples, of which the first one was made up of a woman who suffered from blocked fallopian tubes, meaning that she could produce ova, but had to resort toin vitro fertilisation. Her husband was infertile, meaning that they would have needed to use donated sperm from an third party in theirin vitro treatment process. However, this was forbidden by Austrian law, even though the use of donated sperm inin vivofertilisation, meaning directly inseminating a fertile woman with sperm from a third party was allowed by the law. The second couple was a made up of a woman who suffered from agonadism, meaning that she did not produce ova. Thus, she
85Kerkhoven, Hinke and Hinke v. the Netherlands, “The Law”.
86Kerkhoven, Hinke and Hinke v. the Netherlands, “The Law”.
87S.H. and Others v. Austria[GC], no. 57813/00, ECHR 2011.
and her husband, who was fertile, needed to resort toin vitro fertilisation with a donated egg from a third party. This was not allowed in Austrian law, which allowedin vitro fertilisation only with eggs and sperm from the couple to be treated. Allowing insemination with donated sperm was an exception in the law, due to the simplicity and the fact that historically, this technique of assisted reproduction dated from an earlier time thanin vitro fertilisation.88
In the European Court, this case was subject to two conflicting judgements:
a Chamber judgement in 201089 which found a violation of Article 8 and citing the illogical nature of the law in question as the main reason for this. However the case was referred to the Grand Chamber, which gave a judgement in late 201190, stating that there had been no violation of Article 8 or any other right enshrined in the Convention. The text of the case offers also a brief overview of the practices of the Member States of the Council of Europe on the matter.
In most Member States, assisted reproduction services, both public and private, were governed by relevant legislation. In a minority of these states, egg donation, sperm donation or both were not allowed. At the time, sperm donation was prohibited in Italy, Lithuania and Turkey. Donating eggs was prohibited in these three countries as well as in Austria, Croatia, Germany, Norway and Switzerland. Unlike Austria, States that allow sperm donation do not usually distinguish for which kind of techniques of assisted reproduction donated sperm may be used.91
The most interesting arguments put forward by the Austrian government and the intervening third parties arguing in the same lines (the German Government, the Italian Government, and the Catholic NGOs European Centre for Law and Justice andAktion Leben) concerned the prohibition of egg donation. For example, the Austrian government maintained that
In the debate in [the Austrian] Parliament it had been pointed out that ovum [egg] donation depended on the availability of ova and might lead to problematic developments such as the exploitation and humiliation of women, in particular those from an economically disadvantaged background. There was also the risk that pressure might be put on women undergoing in vitro fertilisation to provide more ova than strictly necessary for their own treatment to enable them to pay for it.
S.H. and Others v. Austria, para 66
Furthermore, the Government of the respondent State, Austria, argued that
“In vitro fertilisation also raised the question of unusual relationships in which the social circumstances deviated from the biological ones, namely, the
88S.H. and Others v. Austria [GC], paras 9-14.
89 SeeS.H. and Others v. Austria, no. 57813/00, ECHR 2010.
90S.H. and Others v. Austria[GC], no. 57813/00, ECHR 2011.
91S.H. and Others v. Austria [GC] paras 35-40.
Filiation: Adoption and Assisted Procreation
division of motherhood into a biological aspect and an aspect of “carrying the child” and perhaps also a social aspect”92. In turn, the intervening German government supplied an argument concerning “split motherhood”:
This prohibition [of egg donation] was intended to protect the child’s welfare by ensuring the unambiguous identity of the mother. 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.
S.H. and Others v. Austria, para 70
The most ‘structuralist’ argument came from the Italian government, which, in addition to the risks of exploitation of poor women, trafficking ova and premature births due to IVF treatment, put forth the view that “to call maternal filiation into question by splitting motherhood would lead to a weakening of the entire structure of society”93. Interestingly, Italy is also a country that allows anonymous birth to take place. This “splitting of motherhood” into biological motherhood and legal/social motherhood is not seen, at least in the same way, to “call maternal filiation into question” and to
“lead to a weakening of the entire structure of society”. Surely, the mater semper certa est principle, or the one-pillar structure of (gestational) maternity as the first and foremost parental relation available to a child, is of great importance in European legal thinking concerning maternal filiation.
However, in most States this has been interpreted to mean that gestational motherhood, carrying and giving birth to a child, overruns genetic maternity in a case where they would be in conflict. Just like a sperm donor does not have a right to evoke paternity when there has been a male partner giving his consent to assisted reproduction and who is named as the father, an egg donor does not have a right to evoke maternity when the woman giving birth obviously has ‘consented’ to the treatment. This situation is, of course, reversed in contracted and commissioned surrogacy arrangements, but as remunerated surrogacy is not available in most European countries, this is not a widespread concern on a legal level.
The Grand Chamber judgement of Evans v. the United Kingdom from 200794 is also significant, as it concerns the use of embryos after separation and divorce. Evans, the female party to the couple in question, had
pre-92S.H. and Others v. Austria [GC], para 67.
93S.H. and Others v. Austria, para 73.
94Evans v. the United Kingdom, no. 6339/05, 7 March 2006.