Court verdict egg donation continues to be prohibited

European Court of Justice upholds the ban on egg cell donations

03/11/2011

In the future, infertile couples in Germany will not be able to use the combination of donated eggs and sperm in order to fulfill their wish to have children despite being infertile. The European Court of Human Rights ruled against the lawsuit brought by two infertile couples from Austria who saw the ban on egg donation as a violation of human rights, especially the right to respect for family life.

The donation of oocytes for artificial insemination is banned in Austria as well as in Germany. The plaintiffs considered this a violation of the European Convention on Human Rights and therefore appealed against the ban. However, the European Court of Human Rights (ECtHR) in Strasbourg has now decided against the claim of the infertile couples and confirmed the ban on egg donation as lawful. There is no violation of human rights according to the judgment of the judges.

Prohibition of egg donation does not violate human rights
The plaintiffs had tried in vain to obtain artificial insemination in Austria with the help of donated sperm and egg cells. Since the procedure in Austria - as well as in Germany - is forbidden by law, the infertile couples sought help with the court. In doing so, the plaintiffs relied on human rights, and explicitly on the right to respect for family life, in order to achieve artificial insemination on the basis of donated ova and sperm. In the first instance, the couples were also right, but the Austrian government appealed the verdict of April last year. Now the judges of the European Court of Justice mostly followed the opinion of the government in Vienna. Twelve out of 17 judges saw no ban on oocyte donation as a violation of the Convention on Human Rights and the right to respect for family life. The first-instance verdict was overturned.

Avoid splitting of biological motherhood
The judges followed in their opinion the opinion that the „Splitting of motherhood“ between the donor and the child's offspring could cause problems because „Two women could claim to be the biological mother of the same child.“ The lawmakers wanted to prevent this with the prohibition of the egg donation, whereby „carefully weighed“ became and the legislature around „an agreement of social realities with the fundamental approach endeavors“ was judged by the judges of the ECtHR. Nor is the claimants under Austrian law prohibited to have artificial insemination carried out abroad. Since the legal regulations in Germany are similar to the Austrian ones, the judgment has significance in this country as well.

For artificial insemination abroad?
In Germany, the so-called in vitro fertilization (in vitro fertilization) by sperm anonymous donors are allowed, artificial fertilization with donated eggs, however, are also prohibited. Had the judges of the European Court of Justice given the infertile couples from Austria right and confirmed a violation of the Convention on Human Rights, a change in the law would have been necessary in Germany as well. The current verdict leaves those affected who do not want to renounce their desire to have children, however, only the opportunity to have the intervention carried out in a country that does not prohibit egg donations. However, as the medical standards here often do not correspond to those in Austria or Germany, this is a particularly difficult decision for the couples concerned. Especially since an artificial insemination anyway not to be underestimated health risks (keyword: cancer by hormone administration) may be connected. (Fp)

Read about:
Cancer through hormone transfer in artificial insemination