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Corte Europea dei Diritti dell'Uomo - S.H. ed altri v. Austria: divieto di donazione di gameti per fecondazione in vitro
3 novembre 2011

La Grand Chamber della Corte Europea dei Diritti dell'Uomo dichiara il divieto di donazione di gameti per fecondazione in vitro sancito dalla legge austriaca in materia di procreazione medicalmente assistita compatibile con l'articolo 8 della CEDU, esprimendo allo stesso tempo un "monito" ai legislatori nazionali, i quali sono chiamati a prendere in considerazione, nel momento in cui esercitano il proprio margine di apprezzamento, i continui sviluppi tecnico-scientifici che caratterizzano l'ambito della procreazione medicalmente assistita.

ric. n. 57813/00

Il testo della sentenza è disponibile nel box download.

Di seguito, alcuni passaggi significativi della sentenza:

"97.  Since the use of IVF treatment gave rise then and continues to give rise today to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments, and since the questions raised by the case touch on areas where there is not yet clear common ground amongst the member States, the Court considers that the margin of appreciation to be afforded to the respondent State must be a wide one (see X, Y and Z v. the United Kingdom, cited above, § 44). The State’s margin in principle extends both to its decision to intervene in the area and, once having intervened, to the detailed rules it lays down in order to achieve a balance between the competing public and private interests (see Evans, cited above § 82). However, this does not mean that the solutions reached by the legislature are beyond the scrutiny of the Court. It falls to the Court to examine carefully the arguments taken into consideration during the legislative process and leading to the choices that have been made by the legislature and to determine whether a fair balance has been struck between the competing interests of the State and those directly affected by those legislative choices"

"114.  The fact that the Austrian legislature, when enacting the law on artificial procreation which enshrined the decision not to allow the donation of sperm or ova for in vitro fertilisation, did not at the same time prohibit sperm donation for in vivo fertilisation – a technique which had been tolerated for a considerable period beforehand and had become accepted by society – is a matter that is of significance in the balancing of the respective interests and cannot be considered solely in the context of the efficient policing of the prohibitions. It shows rather the careful and cautious approach adopted by the Austrian legislature in seeking to reconcile social realities with its approach of principle in this field. In this connection the Court also observes that there is no prohibition under Austrian law on going abroad to seek treatment of infertility that uses artificial procreation techniques not allowed in Austria and that in the event of a successful treatment the Civil Code contains clear rules on paternity and maternity that respect the wishes of the parents (see, mutatis mutandis, A. B. and C. v. Ireland, cited above, § 239).

(e)  The Court’s conclusion

115.  Having regard to the above considerations, the Court therefore concludes that, neither in respect of the prohibition of ovum donation for the purposes of artificial procreation nor in respect of the prohibition of sperm donation for in vitro fertilisation under section 3 of the Artificial Procreation Act, the Austrian legislature, at the relevant time, exceeded the margin of appreciation afforded to it.

116.  Accordingly, there has been no breach of Article 8 of the Convention as regards all of the applicants.

117.  Nevertheless the Court observes that the Austrian parliament has not, until now, undertaken a thorough assessment of the rules governing artificial procreation, taking into account the dynamic developments in science and society noted above. The Court also notes that the Austrian Constitutional Court, when finding that the legislature had complied with the principle of proportionality under Article 8 § 2 of the Convention, added that the principle adopted by the legislature to permit homologous methods of artificial procreation as a rule and insemination using donor sperm as an exception reflected the then current state of medical science and the consensus in society. This, however, did not mean that these criteria would not be subject to developments which the legislature would have to take into account in the future.

118.  The Government have given no indication that the Austrian authorities have actually followed up this aspect of the ruling of the Constitutional Court. In this connection the Court reiterates that the Convention has always been interpreted and applied in the light of current circumstances (see Rees v. the United Kingdom, 17 October 1986, § 47, Series A no. 106). Even if it finds no breach of Article 8 in the present case, the Court considers that this area, in which the law appears to be continuously evolving and which is subject to a particularly dynamic development in science and law, needs to be kept under review by the Contracting States (see Christine Goodwin, cited above, § 74, ECHR 2002-VI, and Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002-IV)."

Pubblicato il: Giovedì, 03 Novembre 2011 - Ultima modifica: Lunedì, 24 Giugno 2019
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