Certain states impose restrictions on assisted reproduction because they believe such acts to be morally wrong. However, people who live in a state with restrictive legislation always have the option of going abroad to evade that law. Turkey and several states in Australia have enacted extraterritorial laws to stop forms of reproductive travelling for law evasion. Within the EU, the European Convention of Human Rights would normally remove the need for extraterritorial laws. However, because of the wide margin of appreciation allowed by the European Court of Human Rights, legal diversity on these matters persists. In the case of S.H. and Others v. Austria, moral justification, consistency and proportionality were introduced by the First Section to rule on Member States’ legislation on medically assisted reproduction. The First Section mostly ruled on the effectiveness of the law, while the focus should be on the validity of the normative aim. The Grand Chamber reversed this judgement based on the margin of appreciation doctrine, using it as a pragmatic substitute for a substantial decision. In general, the EU’s interests of harmonization and unification are at odds with the right to national identity of individual states in areas of contested morality.
W. Van Hoof and G. Pennings“Extraterritoriality for cross-border reproductive care: should states act against citizens travelling abroad for illegal infertility treatment?”Reproductive Biomedicine Online23 (2011) 546-554.
IFPA.2011. “Between January 1980 and December 2010 at least 147912 women travelled from the Republic of Ireland for safe abortion services abroad.” Retrieved 26 August 2011 http://www.ifpa.ie/Hot-Topics/Abortion/Statistics.
European Parliament2009. Report on the proposal for a directive of the European Parliament and of the Council on the application of patients’ rights in cross-border healthcare (COM(2008)0414 — C6-0257/2008 – 2008/0142(COD)) Committee on the Environment Public Health and Food Safety.
N. Priaulx“Testing the Margin of Appreciation: Therapeutic Abortion, Reproductive ‘Rights’ and the Intriguing Case of Tysiąc v. Poland”European Journal of Health Law15 (2008) 361-379.