The economic crisis in the Eurozone is dominating headlines, but it has not all been bad news from Europe. Hidden in the media reporting from Europe at the end of last week was some encouraging news about an ECHR ruling that upholds a ban in Austria on using donor egg and sperm for IVF.
Interestingly, this decision has come hot on the heels of two other European court rulings, the most recent one by the EU Court of Justice preventing scientists from patenting stem cells if they are obtained by destroying human embryos. This welcome ruling was the subject of a CMF blog a couple of weeks ago. In another judgement, the ECHR ruled that a prohibition on same-sex marriage does not violate the European Convention on Human Rights.
In the case of S. H. and others v. Austria, the European Court of Human Rights (ECHR) delivered its final judgment on 3 November and, very unusually reversed a previous judgment. Its latest ruling justifies a ban on IVF using sperm or ova donations in Austria, and also confirms that the sensitive moral questions raised by IVF can legitimately be taken into consideration by national legislators.
Specifically, it confirms that signatory countries have a right to ban the use of donor sperm or eggs on the basis that their use deliberately severs the link between a child and its biological mother or father, or both. Austria, Germany and Italy, among other countries, ban the use of donated eggs because they believe it is wrong to split motherhood between a biological mother (a surrogate mother), a genetic mother (the egg donor), and even a social mother (who raises the child).
This reversal is particularly welcome as the initial decision issued by the Court in April 2010 undermined the family, it presupposed the existence of a ‘right to have a child’ and it over-ruled national sovereignty in bioethical issues. This new ruling has been claimed to be a victory for the right of children to know and to be raised by their two natural parents and a defeat for those who argue against the importance of biological motherhood and fatherhood
The Grand Chamber also recognizes that the ‘splitting of motherhood between a genetic mother and the one carrying the child differs significantly from adoptive parent-child relations‘. The same reasoning applies concerning splitting of fatherhood caused by sperm donation.
What is particularly striking is how much this ruling contrasts with a very recent HFEA decision in the UK to increase the rates of ‘compensation’ given to egg and sperm donors. In other words, far from banning donations, the HFEA wishes to increase donor numbers and plans to do so by offering far higher ‘compensation’ than at present (up to £750 for egg donors, which could include travel expenses, and an average of £525, or £35 per visit, for sperm donors). This was also the subject of a CMF blog.
As Austrian law acknowledges, personal biological heritage matters to people. Donor conceived adults are increasingly speaking out about the profound effect that the loss of their biological heritage (their biological mother and/or father) has on them. Joanna Rose was conceived by donor insemination over thirty years ago and says this of her conception:
‘Just as infertility is grieved, because people grieve the loss of having and raising their own genetic children, so too can that loss be mirrored by not knowing or being raised by one’s own genetic parents. Indeed, for many, this loss is exacerbated when it is intentionally and institutionally created, unlike infertility… this loss has been identified by leaders in the field as having a lifelong impact.’
So this is a welcome ruling. However there are two notes of caution to draw attention to. First, the court noted at the conclusion of the ruling that the Austrian Parliament might want to revisit the issue, and that, effectively, if the European consensus changes, a different result could later apply.
Second, the ruling does not prevent fertility ‘tourism’, and there is no doubt that ruling such as this can be easily circumvented by those with the money to travel to countries where the laws are more ‘relaxed’ to obtain eggs or sperm for IVF. And for those women that don’t have money, the attraction of a paying for a cheap Easy Jet flight to the UK and then getting £750 ‘compensation’ for donating their eggs, despite the physical risks and ethical issues, could become quite appealing.
Posted by Philippa Taylor
CMF Head of Public Policy
 Who Am I? Experiences of Donor Conception, Idreos Trust, 2006