Information Note on the Court’s case-law
Judgment 8.12.2022 [Section V]
Respect for private life
Dismissal of a widow’s request to be fertilised with deceased husband’s frozen sperm, domestic law allowing such fertilisation only for couples and inter vivos: no violation
Facts – Before starting his oncological treatment, the applicant’s husband had his sperm cryopreserved, using the services of a centre for medically assisted reproduction (“the Centre”), signing a consent form agreeing to such preservation. The consent form included, inter alia, information indicating that further written consent would be required before each occasion when sperm would be thawed for the assisted reproduction procedure, and that unless clearly determined otherwise, storage of the sperm would be discontinued in the event of the donor’s death. On 15 December 2014 the applicant and her husband signed informed consent forms agreeing to infertility treatment using in vitro fertilisation (IVF), and to the thawing of the applicant’s husband’s sperm and its use in intracytoplasmic sperm injection. Subsequently, the applicant’s husband’s health deteriorated and he died on 16 June 2015, before any further steps had been taken. On 7 September 2015 the applicant asked to have her eggs fertilised with her late husband’s cryopreserved sperm. The Centre refused, stating that such a procedure would be contrary to the domestic law.
The applicant lodged legal action before the domestic courts seeking to oblige the Centre to perform the treatment. This action was dismissed by the first-instance court as the applicant had failed to satisfy the conditions for applying for medically assisted reproduction set by section 6 of Law No. 373/2011 on Specific Health Services (“the SHS Act”), namely that she was part of a couple requesting the treatment, not a single woman without a partner, and that the consent of both parties in the couple was less than six months old. All subsequent appeals were unsuccessful.
Law – Article 8:
(a) Preliminary considerations
The right to conceive a child and to make use of medically assisted procreation for that purpose was protected by Article 8. The use of IVF treatment gave rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments. The issues raised by the present case involved, beyond individual interests, a number of wider, public interests as well. Since they touched on the regulation of IVF treatment, the consent to be given to the use of genetic material provided for that purpose and the use of a deceased man’s sperm, where there was no clear European consensus, the respondent State was afforded a wide margin of appreciation.
(b) Compliance with Article 8 § 2 of the Convention
(i) Interference and its lawfulness
The Court approached the case as one involving an interference with the applicant’s right to avail herself of techniques of assisted reproduction. The measure at issue had been provided for by law, namely sections 6 and 8 of the SHS Act.
(ii) Legitimate aim
Citing the case of Evans v. the United Kingdom [GC] the Court acknowledged it was legitimate for a State to set up a legal scheme taking into account the possibility of a delay between creation of an embryo and its implantation in the uterus, in the framework of IVF. Such considerations applied a fortiori to a situation where only sperm had been frozen and no embryo had yet been created. The issue before the Court concerned the possibility to use cryopreserved sperm of a deceased person. This raised rather an ethical question which involved considerations of public interest that might reflect, among others, the situation of to-be-born children.
The relevant provisions of the Czech SHS Act provided that artificial fertilisation could be performed only on the basis of a written application by the woman and the man who intended to undergo the infertility treatment together, an application which had to be less than six months old; also, the infertile couple had to give written consent to assisted reproduction, and this had to be given again before each attempt at artificial fertilisation. The Czech legislature’s decision to enact such provisions, and their interpretation by the domestic courts, revealed the intention to respect human dignity and free will, as well as a desire to ensure a fair balance between the parties involved in assisted reproduction, so that every person donating gametes for the purpose of such treatment would know in advance that no use could be made of his or her genetic material without his or her continuing consent. In response to the applicant’s argument that anonymous sperm donors only gave consent once, when they donated sperm, the Court noted that the wording of the SHS Act indicated that an infertile couple’s consent to assisted reproduction was needed irrespective of whether artificial fertilisation was performed with sperm provided by an anonymous donor or with sperm provided by the woman’s partner. There was thus no difference between the conditions to be satisfied in cases involving anonymous and identifiable donors, as, in any event, the man who had consented to assisted reproduction (and not the anonymous donor) was considered to be the father of a child born via assisted reproduction. Having regard to the foregoing, the Court was satisfied that the measure complained of had pursued a legitimate aim, namely the protection of morals and the rights and freedoms of others.
(iii) Necessity in a democratic society
Considering the margin of appreciation afforded to the Czech legislature, the Court attached some importance that there was no sufficiently established European consensus as to whether a widow could have her eggs fertilised with the frozen sperm of her deceased husband. The Court reiterated that it was not contrary to the requirements of Article 8 of the Convention for a State to enact rules of an absolute nature governing important aspects of private life which did not provide for the weighing of competing interests in the circumstances of each individual case.
Artificial fertilisation using cryopreserved sperm, provided by either a woman’s partner or an anonymous donor, was allowed under Czech law solely for couples and inter vivos. Indeed, in order to protect not only the free will of the man who has consented to assisted reproduction, but also the right of the unborn child to know his parents, the SHS Act required the existence of a couple who wished to undergo such treatment and who had to give written consent before each attempt at fertilisation. Although neither an unborn child nor a deceased person were the holders of Convention rights as such, the Court found such considerations relevant and saw no reason to call this legislative choice into question. Rights under Article 8 were not absolute and therefore did not require Contracting States to allow artificial fertilisation post-mortem. The Court noted also that there was no prohibition under Czech law on a person going abroad to seek post-mortem fertilisation in a country which allowed it, even though transferring sperm abroad could also be subject to conditions. It found it equally noteworthy that in most of the few countries which allowed assisted reproduction to continue after the death of a husband or partner, such a procedure was surrounded by guarantees related to the deceased man’s prior informed consent.
The Court concluded the domestic rules were clear and had been brought to the attention of the applicant. The domestic courts had carefully examined her arguments, but considered that the provisions of the SHS Act could not be disapplied. They had emphasised, inter alia, that in a situation where the applicant’s husband had signed an informed consent form containing an explicit provision on the destruction of the cryopreserved sperm in the event of his death, the further consent from him which had been required by law could not be prejudged and replaced by a court’s decision after he had passed away. The applicant’s legitimate right to respect for the decision to have a child genetically related to her late husband should not be accorded greater weight than the legitimate general interests protected by the impugned legislation. This was all the more so that the Czech Republic had to be afforded a wide margin of appreciation in this respect, which it had not overstepped.
Conclusion: no violation (unanimously).
(See also Evans v. the United Kingdom [GC], 6339/05, 10 April 2007, Legal Summary; S.H. and Others v. Austria [GC], 57813/00, 3 November 2011, Legal Summary)