Austria's law banning the use of donor eggs for in-vitro fertilisation (IVF) is not in breach of the European Convention on Human Rights, the Grand Chamber of the European Court of Human Rights has ruled.
In practice, the decision also permits countries to ban the use of donor sperm.
The decision has been hailed by family rights activists as 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 judgement, issued last week, reverses a ruling last year by the First Section of the Court stating that Austria's position in this regard was in violation of the right to respect for private and family life contained in Article 8 of the Convention.
However, the Grand Chamber found that the Austrian parliament was entitled to refer to, “natural procreation,” and to the, “natural family,” (with only one mother and one father) as a justification for their ban on using donor eggs.
The Grand Chamber recognised the Austrian legislature’s conviction “that medically assisted procreation should take place similarly to natural procreation.”
The court also recognised that Austria is entitled to maintain a recognised principle of civil law – mater semper certa est [the mother is always certain].
The principle is intended to avoid the possibility that two persons could claim to be the biological mother of the same child and to avoid disputes between a biological and a genetic mother in the wider sense.
The ruling confirms that the sensitive moral questions raised by IVF can legitimately be taken into consideration by national legislators.
The ruling means that national legislatures of countries signed up to the Convention can recognise the principle that children have a right to be raised by their biological parents, where possible.
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.
In Ireland, the use of donor sperm and eggs is unregulated and children conceived by donor sperm or eggs do not have a legal right to know their donor parent, let alone be raised by them.
Here, recommendations by the Government-appointed Commission on Assisted Human Reproduction (CAHR) produced in 2005 proposed regulating sperm and egg donations.
It proposed that gay couples and single people be allowed to use IVF services, and that surrogacy be allowed.
It did propose that the children of donor offspring be given the right to access the details of their donor parents when they reach the age of 18.
Generally, IVF clinics use the sperm and the egg of the commissioning couples.
This is known as ‘homologous IVF’.
When the commissioning couple uses someone else’s egg and/or sperm, this is called ‘heterologous IVF’. The Austrian ban is specifically on heterologous IVF.
Germany joined Austria in its appeal against the original ruling of the ECHR.