States have margin of appreciation to regulate access to reproductive health care

S.H. & Others v Austria [2011] ECHR 1879 (3 November 2011)


The Grand Chamber of the European Court of Human Rights has found that Austrian legislation which prevents couples from conceiving a child with in vitro fertilization using donated ova or sperm does not breach the European Convention on Human Rights.

This decision reverses an earlier finding that Austria’s Artificial Procreation Act breached the applicants’ rights to private and family life (article 8) and non- discrimination (article 14) under the Convention.

The decision focuses on state parties’ discretion when it comes to balance competing rights and interests, referred to as the “margin of appreciation”. Taking into account all the circumstances, the Court granted Austria a wide margin of appreciation in this instance.


The applicants were two married, heterosexual couples who, for biological reasons, were unable to conceive naturally. Both couples required access to IVF treatment. Additionally, the first and second applicants needed access to donated sperm, while the second and third applicants needed donated ova. Both couples were prohibited by the Act from accessing the particular treatment they sought.

Relevantly, there is no universal agreement among member states about where to draw the line in this complex and sensitive area of the law. Regulation of reproductive treatments varies from country to country. In Austria, sperm donation is permitted for the purposes of artificial insemination only, but not IVF. Many other European countries that allow sperm donation do not distinguish between its use in artificial insemination and IVF treatment. Italy, Lithuania and Turkey prohibit sperm donation altogether. Croatia, Germany, Norway and Switzerland, meanwhile, permit sperm donation but prohibit ova donation.

Germany and Italy intervened in these proceedings in support of Austria’s position.


The applicants claimed that Austria’s restrictions on IVF interfered with their rights to procreate and found a family without discrimination.

The applicants also argued that decisions about reproduction “concerned the most intimate sphere of their private life and therefore the legislature should show particular restraint in regulating these matters”. They submitted, therefore, that Austria’s “margin of appreciation” should be narrowly conceived.

The Austrian government conceded that article 8 of the Convention was relevant in the circumstances in the case. In other words, it agreed that “the private life aspect within the meaning of Article 8.1 of the Convention also covered the desire of couples or life companions to have children as on of the essential forms of expression of their personality as human beings”.

While acknowledging that the Act limited the applicant’s rights, Austria submitted that the limitation was lawful, legitimate and necessary, bearing in mind the competing rights and interests at stake and the particular sensitivities surrounding reproductive treatments.

Specifically, Austria raised concerns about expanding access to IVF on the bases that:

  • egg donation might lead to the “exploitation and humiliation” of women, particularly economically disadvantaged women by creating a marketplace for ova;
  • it wanted to avoid circumstances where a child could claim to have two biological mothers (the egg donor and the woman who carried the embryo), and
  • broadening access to IVF may open the gateway to lead to selective reproduction and raised “essential questions regarding the health of children…general ethics and moral values of society”.

The applicants also argued that many of these concerns relied on by Austria could be overcome by enacting supplementary legislation, such as laws prohibiting the buying or selling of ova (which already exist in Austria) and laws clarifying maternity. Further, the applicants said the Act was “illogical and inconsistent” because it permitted IVF and the use of sperm donors, but prohibited medical treatment which involved combining the two.


The decision focuses on the issue of Austria’s margin of appreciation. In other words, was the limitation on the applicant’s human rights a legitimate exercise of Austria’s discretion to balance competing rights and interests? The majority said the key issue was whether “in striking the balance at the point at which it did, the Austrian legislature exceeded the margin of appreciation afforded to it under the Article,” and not whether Austria might have reached a different (arguably fairer) solution.

On the one hand, the majority said that where a particularly important aspect of an individual’s existence or identity is at stake – as in this case – the margin allowed to the country will normally be restricted.

On the other hand, the majority said where there is no consensus among member states of the Council of Europe about the relative importance of the interests at stake, or the best means of protecting those interests, the margin afforded to each country will be wider, particularly if the case raises sensitive moral or ethical issues. Although the majority referred to an “emerging consensus” among European countries in favour of IVF using donated sperm or ova, it found that it did not significantly narrow Austria’s discretion, as the “emerging consensus” was not yet based on settled or long-standing principles.

Ultimately, the Court accepted that Austria’s conduct did not exceed its margin of appreciation, bearing in mind that the complexities and sensitivities of the issues. Therefore, the Court held that Austria had not breached the Convention.

In concluding, the majority noted the rapid change and dynamism in this area of the law, which leaves the door open to the potential for a different decision in the future.

The case can be found online at:

Emma Purdue is on secondment to the Human Rights Law Centre from Lander & Rogers