A New Approach to Sex-Based Classifications in the Context of Procreative Rights: S.H. & Others v. Austria in Context

Abstract:

A critical discussion of the recent First Section and Grand Chamber judgments of the European Court of Human Rights in the case of S.H. and Others v. Austria, which upheld an Austrian ban on in-vitro fertilisation (IVF) using donor gametes (ova and sperm).

The author argues that the regulatory regime adopted by Austria is overbroad insofar as the regime it adopts fails to accurately reflect the legitimate interests of the state. This is not a conventional “controversial morals” case where, in the absence of a clear moral and/or policy consensus among the Council of Europe member states, states are properly accorded a wide margin of appreciation.

The regime adopted by Austria embodies a clear sex bias (with their respective gametes standing as near perfect proxies for the sex of the applicants) with exceptions being made to address male infertility while leaving women without medical remedy. As such, the margin of appreciation should be significantly restricted and the classifications embodied by the regime subject to the highest possible scrutiny.