Mouvement Raëlien Suisse v. Switzerland (no. 16354/06) — Grand Chamber hearing scheduled for 16 November 2011.
Herrmann v. Germany (no. 9300/07) — Grand Chamber hearing scheduled for 30 November 2011.
S.H. and Others v. Austria (no. 57813/00) — Grand Chamber Judgment 3 November 2011. This case concerns a complaint lodged with the Austrian Constitutional Court in 1998 by two married couples, Austrian nationals, protesting the Austrian ban on medically-assisted procreation techniques. Suffering from infertility, the couples wished to use medically-assisted procreation techniques which are not allowed under Austrian law. In an application filed with the European Court of Human Rights in May 2000, the couples complained that the prohibition by the Austrian law of sperm and ova donation for in vitro fertilization violated their right to respect for family life under Article 8 and that the difference in treatment compared to couples who wished to use medically-assisted procreation techniques, but did not need to use ova or sperm donation for in vitro fertilization, amounted to a discriminatory treatment, in violation of Article 14.
In its Chamber judgment of 1 April 2010, the Court held, by five votes to two, that there had been a violation of Article 14 in conjunction with Article 8 as regards the prohibition of in vitro fertilization with the use of ova from a donor, which affects the couple H.E.-G and M.G. and, by six votes to one, that there had been a violation of Article 14 in conjunction with Article 8 as regards the prohibition of in vitro fertilization with the use of sperm from a donor, which affects the couple S.H and D.H. On 4 October 2010, the case was referred to the Grand Chamber at the Austrian Government’s request. A Grand Chamber hearing took place on 23 February 2011.
In its Grand Chamber judgment the Court held that the right of a couple to conceive a child and to make use of medically-assisted procreation for that purpose was protected by Article 8, as such a choice was an expression of private and family life, and the Court found it reasonable to approach the case as one involving an interference by the State with the applicants' right to respect for their family life. As regards the State’s margin of appreciation in regulating matters of artificial procreation, the Court observed that there was today a clear trend in the legislation of Council of Europe member States towards allowing gamete donation for the purpose of in vitro fertilization. However, emerging European consensus was not based on settled principles but rather reflected a stage of development within a particularly dynamic field of law and thus did not decisively narrow the margin of appreciation of the State. The Court therefore considered that the margin of appreciation to be given to Austria had to be a wide one.
The Court concluded that Austria had not, at the relevant time, exceeded the margin of appreciation afforded to it, neither as regards the prohibition of ovum donation for the purposes of artificial procreation nor as regards the prohibition of sperm donation for in vitro fertilization. There had accordingly been no violation of Article 8 in the applicants' case. In view of its findings under Article 8, the Court did not consider it necessary to examine the complaint separately under Article 14 in conjunction with Article 8.
Judge de Gaetano expressed a separate opinion. Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria expressed a joint dissenting opinion.