The consequences of S.H. and Others v. Austria for legislation on gamete donation in Europe: an ethical analysis of the European Court of Human Rights judgments

Abstract

There is a high degree of legal diversity within Europe concerning medically assisted reproduction. This is in direct opposition to the project of harmonization of the European institutions. This paper takes a closer look at the different national interpretations of the European Convention on Human Rights with regard to gamete donation. In the case of S.H. and Others v. Austria, the European Court of Human Rights originally condemned the prohibitions on egg donation and sperm donation for the purpose of IVF. The court judged the law to be incoherent and disproportionate. This decision was recently reversed on appeal based on the margin of appreciation doctrine. This paper critically reviews the judgments of the European Court of Human Rights and analyses what this case means for the future of legislation on medically assisted reproduction in Europe. It is concluded that legal diversity and cross-border reproductive care will persist and that the court failed to protect European patients from arbitrary interference with their right to procreation.