Case of S.H. and Others v. Austria: Practical Concern over Individual Rights

Abstract

The European Court of Human Rights upheld the constitutionality of the Austrian Artificial Procreation Act in November 2011. The Court decided the case on procedural grounds, claiming that the wide margin of appreciation given to European Union member states when there is no consensus within the EU on an issue. In doing so, the Court applied Articles 8 and 14 of the European Convention on Human Rights, but found that the procedural deference owed to the member state, Austria, outweighed the protections afforded by these articles. This Comment argues that while the court reached the correct result, it did so on improper grounds, and left the state of the law unclear for future couples seeking to conceive children through artificial insemination. Future couples are left to debate whether enough states have changed their law to allow artificial insemination that the scales have tipped in their favor, and the margin of appreciation will allow the court to overturn member state law.