Acerca de la Sentencia del Tribunal Europeo de Derechos Humanos. Caso 5.H. y Otros contra Austria. TEDH 2010/56 de 1 de abril, en materia de reproduccion humana asistida y su incidencia en el panorama legislativo europeo

摘要

The judgment of ECHR 2010/56 responds positively the appeal on the part of four Austrian citizens (two married couples) against the Austrian state. The applicants complained that the prohibition of sperm and ova donation for in vitro fertilisation as established in the Austrian Law of 1992 amounts to discrimination, against article 14 of the European Convention on Human Rights in conjunction with article 8, which establishes that everyone has the right to respect for his private and family life. After a detailed exposition of the circumstances surrounding this case, the author examines the origin of the practices of artificial insemination and IVF. The author highlights the transcendence of questions linked to extracorporeal fertilisation and human embryology and looks at the European regulation and the doctrine of reproductive rights, paying attention to the widespread use of the abovementioned techniques in the globalised world and the trans-border practices in the European territories. The author points out that the current implementation of assisted reproduction techniques and the lack of uniform regulation in the European context might have influenced the above judgment of the ECHR 2010/56, which pronounced that the 1992 Austrian Law of Artificial Reproduction was not in accordance with article 14 of the European Convention on Human Rights, contrary to the judgment passed by the Austrian Constitutional Court eleven years earlier. It was not questioned, and so it was established by the ECHR, that the applicants right to use assisted reproduction techniques is protected by article 8 of the Convention. However, this does not make the estate liable to allow or regulate the abovementioned practices as long as this does not result in discrimination. According to the author, the right to resort to artificial reproduction techniques is contingent and therefore different from the freedom to procreate that is inherent to the human person, and covered under the right of men and women to marry and found a family warranted by article 12 of the European Convention on Human Rights.