The margin of appreciation recognized for the signatory states of the european convention on human rights in the field of medically assisted human reproduction

Author:Georgeta-Bianca Spîrchez
Position:Assistant Lecturer, Ph.D., Transilvania University of Brasov, Faculty of Law
Pages:7-16
SUMMARY

The following study focuses on a subject that is facing an obvious dynamic, correlated with the latest progress of medical sciences-that of medically assisted human reproduction. The option for analysing such a theme lies in the fact that it continues to generate issues not only of legal nature, but also ethical and moral ones, extremely delicate, having significant consequences in matters of family relationships. As there is no unitary approach at European level, we intend to examine, through this article, the general principles that emerge from the European Court of Human Rights case-law (as all Member States of the European Union are part of the European Convention of Human Rights). Thus, the international jurisdiction recognizes for the signatory States of the European Convention on Human Rights an appropriate margin of appreciation, which the European Court considers the States should enjoy in this sphere, but subject the decisions of the national authorities to a critical evaluation, in order to investigate the observance of the right balance between the competing interests. Drafting the work plan of the paper, we considered, in its first part, the elements of analysis that make up the margin of appreciation doctrine, having in mind, afterwards, their application in concrete cases brought before the ECHR, cases that are confined to the problem of assisted procreation.

 
CONTENT
The margin of appreciation recognized for the signatory… 7
EUROPEAN LAW
THE MARGIN OF APPRECIATION RECOGNIZED FOR THE
SIGNATORY STATES OF THE EUROPEAN CONVENTION ON
HUMAN RIGHTS IN THE FIELD OF MEDICALLY ASSISTED
HUMAN REPRODUCTION*
Georgeta-Bianca SPÎRCHEZ**
Abstract: The following study focuses on a subject that is facing an obvious dynamic,
correlated with the latest progress of medical sciences-that of medically assisted human reproduction.
The option for analysing such a theme lies in the fact that it continues to generate issues not only of
legal nature, but also ethical and moral ones, extremely delicate, having significant consequences in
matters of family relationships. As there is no unitary approach at European level, we intend to
examine, through this article, the general principles that emerge from the European Court of Human
Rights case-law (as all Member States of the European Union are part of the European Convention of
Human Rights). Thus, the international jurisdiction recognizes for the signatory States of the
European Convention on Human Rights an appropriate margin of appreciation, which the European
Court considers the States should enjoy in this sphere, but subject the decisions of the national
authorities to a critical evaluation, in order to investigate the observance of the right balance between
the competing interests. Drafting the work plan of the paper, we considered, in its first part, the
elements of analysis that make up the margin of appreciation doctrine, having in mind, afterwards,
their application in concrete cases brought before the ECHR, cases that are confined to the problem of
assisted procreation.
Key words: Public Law, International Law, assisted human reproduction, margin of
appreciation doctrine
Introduction
Protocol No. 15 to the European Convention on Human Rights introduces a
concept developed jurisprudentially by the European Court of Human Rights and
* The article was prepared for the International Law Conference, "Current Issues within EU and
EU Member States: Converging and Diverging Legal Trends", 3rd edition, organized by the Faculty of
Law – Transilvania University of Braşov on the 29th-30th of November 2019. All links were last
accessed on 4 November 2019.
** Assistant Lecturer, Ph.D. – Transilvania University of Braşov, Faculty of Law (georgeta-
bianca.spirchez@unitbv.ro).
Law Review special issue, Decembre 2019, pp. 7-16
8 GEORGETA-BIANCA SPÎRCHEZ
which has become defining for the reasoning and interpretation of the European
Court1 - the margin of appreciation. In this regard we refer to the following text
contained in Article 1 of the said Protocol, which is added to the existing Preamble
of the European Convention on Human Rights: “Affirming that the High
Contracting Parties, in accordance with the principle of subsidiarity, have the
primary responsibility to secure the rights and freedoms defined in this
Convention and the Protocols thereto, and that in doing so they enjoy a margin of
appreciation, subject to the supervisory jurisdiction of the European Court of
Human Rights established by this Convention.”
The rationale for the margin of appreciation doctrine is that, in principle,
national authorities are the best one able to assess the necessity and adequacy of
restrictions, respectively of limitations imposed to a fundamental right, in
maintaining a balance between competing private/public interests2. Thus, this
notion refers to the room of manoeuvre that the European Court grants to national
authorities, which implies a certain autonomy recognized in relation to these in the
application of the Convention3, their decision remaining subject to the control of
the Court, which is competent to check that the margin of appreciation recognized
to the national authorities does not exceed the limits imposed by a democratic
society4.
Regarding the extent of this margin of appreciation left within the reach of the
Member States, we note that this is not the same for all the causes subject to
examination before the Court, but varies depending on the context, on the nature
of the conventional right in question, on its importance to the person claiming it,
on the nature of the disputed activities5. Therefore, we intend to analyse, through
this study, the concrete applications of the margin of appreciation, namely in the
field of medically assisted human reproduction.
In this regard, we find it relevant to indicate here, with an introductory title, a
conclusion set by the Court6, regarding the factors that assess the extent of the
margin of appreciation recognized to the states: “A number of factors must be
taken into account when determining the breadth of the margin of appreciation to
1 B. Selejan Guan, Recent normative developments in European human rights law, Pandectele române
no.11/2013, article consulted on www.sintact.ro database
2 M. Wells-Greco, The status of children arising from inter-country surrogacy arrangements, Eleven
International Publishing, 2016, pp.340-341
3 D. Spielmann, Allowing the right margin: the European Court of Human Rights and the national
margin of appreciation doctrine: waiver or subsidiarity of European revie w?, published online by Cambridge
University Press: 2017, p.382
4 C. Bârsan, The European Union and the European Convention on Human Rights: unity or duality in
the European protection of human rights, Revista român de drept european (comunitar) no.1/2003,
article consulted on www.sintact.ro database
5 Idem
6 ECHR, Case Evans v. The United Kingdom, nr.6339/05, April 10, 2007, par.77, available [Online]
at: https://hudoc.echr.coe.int
The margin of appreciation recognized for the signatory… 9
be enjoyed by the State in any case under Article 8. Where a particularly important
facet of an individual’s existence or identity is at stake, the margin allowed to the
State will be restricted [...]. Where, however, there is no consensus within the
member States of the Council of Europe, either as to the relative importance of the
interest at stake or as to the best means of protecting it, particularly where the case
raises sensitive moral or ethical issues, the margin will be wider [...].There will also
usually be a wide margin if the State is required to strike a balance between
competing private and public interests or Convention rights [...]”.
1. General aspects regarding the legal problems raised by medically assisted
human reproduction
The advances of medical research and genetics have allowed human
reproduction to be no longer, nowadays, entirely "a random event, based on the
game of destiny", but allow us to manifest an increasing power of decision and
control7. In this respect, from a legal point of view, it is noted8 that the
development in the Strasbourg Court case law of the principle of
self-determination derived from the right to respect privacy "has ensured the
contractualization of the person's right to dispose of him/herself and the right to
become a parent".
In a definition of medically assisted human reproduction, outlined in our
research literature9, under the inspiration of the French Public Health Code, it was
shown that we will understand "those clinical and biological practices that allow in
vitro conception, embryo transfer and artificial insemination, as well as any other
techniques that make procreation possible outside the natural process ”.
As the doctrine concludes10, these artificial procreation practices generate a
series of legal problems such as the gestation for another, substitution maternity,
embryo fate, embryonic reduction, being a sensitive area, with heated debates that
invoke ethical and moral considerations, possible causing an increased social
resistance in certain traditionalist states. This is, therefore, a representative area for
exemplifying the doctrine of the margin of appreciation, because the principle is
that where there is no consensus within the Member States of the Convention, as
the progressive social trends are not uniformly embraced, the margin of
appreciation will be wider, as opposed to the matters in which the developed
policy is perceived as a common one, or a European one, which will undoubtedly
imply an effect of narrowing the margin of appreciation11.
7 A. Huidu, Medically assisted human reproduction - the ethics of incrimination vs. biological ethics -
comparative law study, Iaşi: Lumen, 2017, p.21
8 A.R. Motica, L. M. Tec, Family by Contract, Revista de dreptul familiei no.1-2/2019, p.357
9 E. Florian, Family Law. 4th edition, Bucharest: C.H. Beck, 2011, p.232
10 L. Irinescu, The child, a gift or a right? Revista de dreptul familiei no.1-2/2019, p.212
11 M. Wells-Greco, op. cit., p.341
10 GEORGETA-BIANCA SPÎRCHEZ
All the above concerns the scope of the European Court of Human Rights’
analysis, even though the right of reproduction has not been explicitly included in
the human rights mentioned in the international documents12, since the recognition
of the right to privacy also includes the recognition that the person is free in terms
of deciding how to set up a family13. The same legal framework is also supported
in the case of reproduction that occurs outside marriage, as the protection granted
by Article 8 of the European Convention on Human Rights does not differentiate
between the legitimate family and the natural family, therefore "what prevails is
not the criterion of legality, but the criterion of effectiveness, the family life not
being limited exclusively to the formal relations and the legal commitments” 14.
To support this point of view, we will cite from the case law of the Court15, the
passage rendered referring to the case law of this court of human rights developed
for shaping the notion of private life within the meaning shown by us as well: “The
Court reiterates that the notion of “private life” within the meaning of Article 8 is a
broad concept which includes, among other things, the right to establish and
develop relationships with other human beings (see Niemietz v. Germany, 16
December 1992, § 29, Series A no. 251-B), the right to “personal development” (see
Bensaïd v. the United Kingdom, no. 44599/98, § 47, ECHR 2001-I), or alternatively the
right to self-determination (see Pretty v. the United Kingdom, no. 2346/02, § 61,
ECHR 2002-III). Factors such as sexual identity, orientation and life also fall within
the personal sphere protected by Article 8 (see, for example, Dudgeon v. the United
Kingdom, 22 October 1981, § 41, Series A no. 45, and Laskey, Jaggard and Brown v. the
United Kingdom, 19 February 1997, § 36, Reports of Judgments and Decisions 1997-I), as
does the right to respect for the decisions to become or not to become a parent (see
Evans, cited above, § 71; A, B and C v. Ireland [GC], no. 25579/05, § 212, ECHR 2010;
and R.R. v. Poland, no. 27617/04, § 181, ECHR 2011 (extracts)). Under Article 8 of
the Convention, the Court has also acknowledged a right to respect for the decision
to become genetic parents (see Dickson v. the United Kingdom [GC], no. 44362/04, §
66, ECHR 2007-V, with the references cited therein) and concluded that Article 8
applies to heterologous insemination techniques for in vitro fertilisation (see S.H.
and Others v. Austria [GC], no. 57813/00, § 82, ECHR 2011)”.
In this context of analysis it is useful to note that the formation of a family with
the help of modern medical techniques is not exclusively a matter of personal
self-determination, but most often interferes with the interests of the society or
conflicts with other competing rights16, the mission of the contracting states being,
12 A. Huidu, op. cit., p.66
13 Ibidem, pp.70-71
14 Ibidem, p.68
15 ECHR, Case Costa and Pavan v. Italy, nr.54270/10, 28 August 2012, final at 11 February 2013,
par.55, 56 available [Online] la adresa: https://hudoc.echr.coe.int
16 A. Huidu, op. cit., p.66
The margin of appreciation recognized for the signatory… 11
finally, that of maintaining a fair balance within the margin of appreciation
exercised, determining according to objective criteria which of the interests will
prevail.
Thus, the use of the principle of proportionality has proved to be an objective
criterion, being closely linked to the principle of effective protection, imposing a
limit against the temptation to use excessively the margin of appreciation, being
the parameter that offers legal certainty. The practical indications offered in the
specialized studies are relevant to the proportionality test17: „In order to assess the
proportionality of an interference with a right, it is appropriate to examine its
impact on that right, the grounds, the consequences for the applicant and the
context. As regards the grounds for the interference, the importance of the local
circumstances and the difficulty of objectively assessing the respective weight of
conflicting aims play a major role. It is for the State to justify the interference. The
grounds must be relevant and sufficient, the need for a restriction must be
established convincingly, any exceptions must be construed strictly and the
interference must meet a pressing social need”.
In the following sections, we aim, without exhausting the whole issue, at
highlighting, by reference to concrete cases that have been before the European
Court of Human Rights, the practical way of examination carried out by this
international case law regarding the overcoming or not of the margin of
appreciation available to the signatory states of the ECHR in the field of artificial
procreation.
2. The margin of appreciation of states in the hypothesis of surrogacy
maternity
In the case of the lineage established following the use of modern techniques -
the option of the surrogate mothers, the legal debates start from legitimate
questions, of the type mentioned in the specialized literature18: "does the fact of
birth take precedence, even if it has no cover in biological truth, or vice versa, and
inevitably, is the subject open to "contractualization" in the form of the convention
having as object "gestation for another" and "substitution maternity"? ".
In trying to find answers, we find it appropriate to refer to two cases that we
consider emblematic for the subject analysed. Thus, in Mennesson v. France19,
Mennesson spouses, after having several unsuccessful attempts of in vitro
fertilization with their own gametes, concluded in California an agreement of
gestation for another, after which they resorted to in vitro fertilization with the
17 D. Spielmann, op. cit., pp.409-410
18 E. Florian, Lineage: between the obsession of biological truth and legal mystification, Revista român
de drept privat nr.3/2018, pp. 123-124.
19 ECHR, Case Mennesson c. Franei, nr. 65192/11, June 26, 2014, final on September 26, 2014,
available [Online] at: https://hudoc.echr.coe.int
12 GEORGETA-BIANCA SPÎRCHEZ
gametes of Mr. Mennesson and an ovule from a donor, for the purpose of
implanting the fertilized embryos in another woman's womb. The caring mother
became pregnant with the twins, and through a decision of the California Supreme
Court, jointly referred by the two spouses, the caring mother and her husband, it
was decided that any child brought to the world by her within the next four
months will have Mr. Mennesson as a "genetic father" and Mrs. Mennesson as a
"legal mother". That decision also indicated the particulars that must be included in
the birth certificate of the twins, clearly specifying that Mennesson spouses must
be registered as father and mother. Following the birth of the twins, Mr.
Mennesson addressed the French Consulate in Los Angeles for the transcription of
birth certificates in the French civil status records and the registration of children
on his passport, in order to be able to return with them to France, but his request
was rejected by the consular authorities, the motivation being that the decision
obtained thus abroad is incompatible with the public order of French international
law. After the domestic remedies were exhausted, the two spouses complained to
the European Court of Human Rights that, to the detriment of the best interests of
their children, they were not able to obtain in France the recognition of the legally
established lineage abroad.
Analysing the request with which it was invested, the European Court of
Human Rights referred to the national margin of appreciation regarding the
recognition or not of the connection of lineage between the children conceived
legally by gestation for another abroad and the parents of intention, but
emphasized that the margin of appreciation mentioned should be reduced to
ensure a fair balance between the interests of the State and those of the persons
directly concerned by the measures taken by the State. For twin children born
under such conditions, the Court found that they are in a situation of legal
uncertainty that could create negative consequences on defining their own
identity, by the refusal of the French authorities to transcribe their birth certificates
issued in another country, in their national civil status registers. At the same time,
given the existence of a biological connection with the father, the Court stressed the
importance of a biological relationship as part of a person's identity, stating that it
is contrary to the interests of a child to deprive him/her of such a legal connection.
In this case, the Court's conclusion was that there was no breach of Article 8 of the
Convention regarding the right of the two spouses to have their family life
respected, but on the other hand, regarding the two twins, there was a breach of
the conventional provisions regarding the respect of their private life.
In a similar case20, the Labassee spouses, the claimant parents before ECHR,
also resorted to gestation for another in the United States of America, using the
genetic material of Mr. Labassee. In this case as well, the ruling in the United States
20 ECHR, Case Labassee c. Franei, nr. 65941/11, June 26, 2014, final on September 26, 2014,
available [Online] at: https://hudoc.echr.coe.int
The margin of appreciation recognized for the signatory… 13
acknowledged that the Labassee spouses are the parents of the child born in this
way, but, nevertheless, the French authorities refused to transcribe the birth
certificates in the French civil status registers, considering that such of transcription
would have meant that a gestation for another convention would cause effects, in
fact being absolutely null for public order causes, under the French Civil Code. The
Court admitted France's margin of appreciation to discourage its own citizens from
resorting to a method of procreation prohibited on its territory, but in its
considerations ruled that this conduct of the French State impinges on the best
interests of the child, the observance of which must prevail in making any decision
regarding them, all the more so as one of the parents of intention is the biological
parent of the child. Therefore, the conclusion was that the respondent State
exceeded the permitted limits of its margin of appreciation, causing an
infringement of the child's right to respect for his/her private life.
3. The problem of the father's consent to keeping and implanting the
fertilized ovules
This issue was debated at the European Court when examining the case Evans
v. The United Kingdom21, which refers to two antagonistic rights - to have children,
respectively not to have children. Such an analysis intervenes, when, after in vitro
embryo formation, the couple breaks up, and one of them wants to destroy the
conception products, withdrawing their consent for their implantation, while the
other seeks the use of the embryos.
In the case we refer to, as the petitioner was found to have pre-cancerous
tumours in the ovaries, she was recommended ovariectomy, not before she was
harvested several ovules for in vitro fertilization. To this end, the couple agreed to
carry out the procedure and conserve the embryos, after being told that, according
to the existing legislation at that time, donors of gametes are granted the right to
withdraw their consent, at any time before embryos were implanted in Mrs. Evans'
womb. As the separation of the two partners subsequently took place, Mrs. Evans'
boyfriend informed the clinic where the procedure was being held that he opposed
to the keeping of the embryos, not agreeing with their use by the petitioner.
As regards the coexistence of the two conflicting rights, equally protected by
the provisions of the European Convention on Human Rights, whatever the
decision of the national authorities, the interest of one of the two partners would
have been harmed, although the petitioner is the one who claimed that her rights
should prevail in the light of her subsequent sterility, a personal situation that
prevents her from having a child to be genetically linked to, if the embryos are
destroyed.
21 ECHR, Case Evans v. The United Kingdom, nr.6339/05, April 10, 2007, available [Online] at:
https://hudoc.echr.coe.int
14 GEORGETA-BIANCA SPÎRCHEZ
As just noted, in the further doctrinal developments on this case22,„the
question was whether Uk law struck a fair balance between the competing public
(legal certainty, the importance of consent) and private (Article 8 rights of both
parents) interests involved. The court referred to the complexity of the issue, the
detailed consideration it had been given in Parliament and in the courts, and the
fact that at the time of the procedure the rules were clear and had been made clear
to the applicant. On this basis, the Court disagreed that the applicant’s right to
respect for her decision to become a parent in the genetic sense should be accorded
greater weight than her ex-partner’s right to respect for his decision not to have a
genetically related child with her”.
4. The national margin of appreciation manifested by the prohibition within
the domestic law to use the ovules and the sperm that come from the donors, for
in vitro fertilization
This debate was triggered by the cause S.H. and others v. Austria23 and it was
based on the Austrian law that had been adopted starting from the idea that the
medical assisted procreation should remain as close as possible to the natural
conception, in order to avoid possible conflicts between the uterine and the genetic
lineage. The legal problem was that, through the control carried out by the
Strasbourg Court, it should be ascertained whether or not the Austrian state
exceeded its margin of appreciation or not, taking into account that there is no
European consensus for the authorization of sperm donation, respectively ovules,
for the purpose of in vitro fertilization.
The Court concluded, at the time of solving this case, within the meaning of
the absence of the breach of the fundamental right protected by Article 8, but the
doctrine accepted that the field in question knows a particular dynamic, which
requires a permanent review by the Member States, being a “clear signal by the
Court that continuing developments in this area will be kept under review and
that different conclusion might be reached in a future case”24.
5. Refusal of the request regarding medically assisted reproduction in case
of detained persons
In Dickson v. The United Kingdom25, the Court was called upon to balance
between on one hand the interests of detained petitioners who wished to have a
22 D.J. Harris, M. O’Boyle, E.P. Bates and C.M. Buckley, Law of the European Convention on Human
Rights, Oxford University Press, 2018, p.527
23 ECHR, Case S.H. and others v. Austria, 57813/00, November 3, 2011, available [Online] at:
https://hudoc.echr.coe.int
24 D.J. Harris, M. O’Boyle, E.P. Bates and C.M. Buckley, op. cit., p.527
25 ECHR, Case Dickson v. The United Kingdom, 44362/04, December 4, 2007, available [Online] at:
https://hudoc.echr.coe.int
The margin of appreciation recognized for the signatory… 15
child together, their only possibility being artificial fertilization, given the date of
the first petitioner's release and the age of the second petitioner, and on the other
hand, the general policy of the respondent State according to which such requests
could only be admitted in exceptional circumstances.
The refusal that the two petitioners received from the authorities included
arguments related to the fact that the punitive elements of the first petitioner's
punishment would be annihilated if he was allowed to conceive a child by artificial
fertilization, during his detention.
In the control carried out, the Court sought to achieve a fair balance between
the public-private interests in the conflict and to see whether the proportionality of
the restriction was evaluated. Here are some of the considerations of the Court, on
which the solution of the breach of Article 8 of the Convention was based:
-- par. 75: „However, and while accepting that punishment remains one of the
aims of imprisonment, the Court would also underline the evolution in European
penal policy towards the increasing relative importance of the rehabilitative aim of
imprisonment, particularly towards the end of a long prison sentence”.
- par.76: „The Court is prepared to accept as legitimate for the purposes of the
second paragraph of Article 8 that the authorities, when developing and applying
the Policy, should concern themselves as a matter of principle with the welfare of
any child: conception of a child was the very object of the exercise. Moreover, the
State has a positive obligation to ensure the effective protection of children [...].
However, that cannot go so far as to prevent parents who so wish from attempting
to conceive a child in circumstances like those of the present case, especially as the
second applicant was at liberty and could have taken care of any child conceived
until such time as her husband was released”.
- par. 81. “The Court notes, as to the European consensus argument, that the
Chamber established that more than half of the Contracting States allow for
conjugal visits for prisoners (subject to a variety of different restrictions), a measure
which could be seen as obviating the need for the authorities to provide additional
facilities for artificial insemination. However, while the Court has expressed its
approval for the evolution in several European countries towards conjugal visits, it
has not yet interpreted the Convention as requiring Contracting States to make
provision for such visits […]. Accordingly, this is an area in which the Contracting
States could enjoy a wide margin of appreciation in determining the steps to be
taken to ensure compliance with the Convention with due regard to the needs and
resources of the community and of individuals” .
- par. 82. […] “the Court considers that the Policy as structured effectively
excluded any real weighing of the competing individual and public interests, and
prevented the required assessment of the proportionality of a restriction, in any
individual case. […] the Policy placed an inordinately high “exceptionality”
burden on the applicants when requesting artificial insemination facilities […].
They had to demonstrate, in the first place, as a condition precedent to the
16 GEORGETA-BIANCA SPÎRCHEZ
application of the Policy, that the deprivation of artificial insemination facilities
might prevent conception altogether (the “starting-point”). Secondly, and of even
greater significance, they had to go on to demonstrate that the circumstances of
their case were “exceptional” within the meaning of the remaining criteria of the
Policy (the “finishing-point”). The Court considers that even if the applicants’
Article 8 complaint was before the Secretary of State and the Court of Appeal, the
Policy set the threshold so high against them from the outset that it did not allow a
balancing of the competing individual and public interests and a proportionality
test by the Secretary of State or by the domestic courts in their case, as required by
the Convention […]”.
Conclusions
Medically assisted human reproduction is the subject of a series of debates, the
lack of consensus in this direction leading the European Court of Human Rights to
recognize, in this regard, a margin of appreciation for the Contracting States, in the
evolutionary interpretation of its provisions.
However, as shown in the Guide on Article 8 of the European Convention on
Human Rights26, once by acting within its limits of appreciation the State adopts
rules that are relevant in this area, the legal framework designed for this purpose
should be formulated coherently, so as to allow the various legitimate interests
involved to be duly taken into account and in accordance with the obligations
arising from the Convention. This can be achieved by reference to the standard of
proportionality, which allows an objective assessment of the existence or
non-existence of an imperative social need able to justify the interference of the
authorities in the exercise of a right defended by the Convention.
26 Consulted [Online] at: http://ier.gov.ro/wp-content/uploads/2019/04/Ghid_art_8_
31.12.2018.pdf