The ECtHR decision in the case of S.H. and others v. Austria – some further considerations

By J.C. von Krempach, J.D. | November 7, 2011

By a previous post readers ofthis blog have been informed of the recent decision by a Grand Chamber of the European Court of Human Rights in the case of S.H. and others vs. Austria. This judgment reverses an earlier Chamber judgment of that Court that would have turned access to “herologous” IVF techniques (i.e. assisted procreation involving the use of donated sperm or ovular cells) into a new “human right”.

This is without doubt a spectacular victory for the pro-life side, and at the same time a victory of sound legal reasoning over the judicial activism of certain ECtHR judges who tend to misinterpret their roles and view themselves as supreme European legislators. The ECtHR very rarely reverses its own judgments, but this is the second time within one year that an awful misjudgment of one of the Court’s Chambers has successfully been challenged. The other case was the ignominious decision in the case of Lautsi vs. Italy, which would have banned all religios symbols from all school classes all over Europe, but which was reversed by a Grand Chamber in March 2011. Yet the S.H. vs. Austria Decision, despite having received much less media attention, was in fact even worse than the outrageous Lautsi Decision: rather than dealing with mere cultural matters, it threatened to undermine the concept of human dignity, the concept of family life, and the fundamental right to life, in an unprecedented way.

Thus it is certainly a great victory that the erroneous chamber judgment has been reversed and that the Court, at least for the time being, refrains from attempting to impose an absurd and immoral approach on reproductive rights on all 47 Member States of the Council of Europe.

At the same time, however, it is quite telling that we greet with relief a judgment through which the ECtHR has abstained from making a seriously wrong decision. In actual fact, the right decision for the ECtHR would have been to declare all procedures involving in-vitro fertilization, and in particular those involving the use of donated sperm or egg cells, to be in violation of human rights, and thus to outlaw them. As it appears, we have already given up all hope that this Court could play a significant role in defending human rights. We are already very happy if it abstains from undermining them.

In this regard, let me share with you just the following observations:

1. Very significantly, the Judgment solely deals with the “rights” of would-be parents, while at the same time not wasting one single thought that a child created in vitro also is a human being and a bearer of human rights. This is typical for the strongly biased feminist ideology prevailing in many courtrooms today, but it falls short of the recent ECJ Decision in the Case of Brüstle vs. Greenpeace. The fact that the human embryo is a human being from the moment of conception implies (a) that IVF procedures, which in nearly all cases involve the creation and subsequent intentional destruction of “additional” embryos, are a blatant violation of the Right to Life enshrined in Article 2 of the European Convention on Human Rights (ECHR), and (b) that the manipulation of the procreative act violates Article 4 of the same Convention, which prohibits slavery. For indeed, the genetic manipulation of a person is the worst possible form of enslaving it: while a slave is only told what to do, the genetically manipulated person is told what to be, – and has no chance of escaping.

2. Much in the same vein, if the human embryo, as the ECJ found, is entitled to protection, then it is also entitled to protection of its family life. But the ECtHR is recognises only the right of would-be parents to found a family, including through the use of IVF and egg/sperm cell donation. It completely disregards the fact that the use of such technologies violates the right o family life of the child so created – especially the right to know, and to live with, its biological parents. Again, the “human right” of some is upheld at the expense of the human rights of others.

3. The Grand Chamber’s main argument for reversing the Chamber Judgment was that at the time when the relevant facts took place (i.e. in the late 1990es, there was not yet a “European consensus” on the use of heterologous IVF techniques. In other words, the court refers to a historical situation which (- but we aren’t told! -) might have changed in the meantime. Thus, if a similar case was brought to the Court based on facts occuring today, the Court might still decide that in the meantime, i.e. in the course of the last ten years, an obligation of Member States to legalise heterologous IVF procedures has somehow “evolved”.

This approach in interpreting an international treaty such as the ECHR is manifestly absurd and stands in blatant contradiction with the most basic rules of international law, notably the interpretative principles set out in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.

Without doubt, it is issues related to sexual mores where the ECtHR’s habit of setting aside the usual interpretative principles is more visible than elsewhere: rather than asking what the State Parties have agreed upon when the Convention was made, the Court tends to read into the Convention a content that it does not enshrine. The argument habitually used for such purposes is that “the Convention is a living instrument which must be interpreted in the light of present-day conditions” – which according to the Court means that the meaning of the Convention can change at any given time, and that it is for the Court, not for the Signatory States, to determine whether such a change has taken place. In actual fact the Court is putting itself into the role of a supreme Europe-wide legislator that, based on the fact that some Member States have adopted “progressive” legislation, may impose on all other countries to make the same choice.

The frequent reference to an “evolving consensus” between Member States appears to serve a similar purpose. But the argument is absurd: if one Member State does not agree, then there is no “consensus” at all, and it would be a clear absurdity to impose on the dissenting country, using the “emerging consensus” of other countries, a choice that it never made and never intended to make.

This problem is systemic and reaches far beyond specific issues such as IVF, or gay rights, or abortion. Given that the particular issue of IVF appears to be settled at least for now, this would be a good occasion for Council of Europe Member States to tackle this horizontal problem, e.g. by issuing a political statement holding the ECtHR responsible to adhere to the internationally recognised methods of legal interpretation.

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