Fragen der menschlichen Reproduktion vor dem EGMR – Zugleich eine kritische Würdigung der Lehre vom staatlichen Beurteilungsspielraum (Margin of Appreciation)

Beginning in the 1970s, first, the European Commission of Human Rights, and later the European Court of Human Rights (ECtHR) have dealt with various complaints in the area of reproduction. Rather than being limited to the abortion controversy, the ECtHR has also addressed issues such as medical malpractice during pregnancy, assisted reproduction, access to prenatal genetic testing and preimplantation genetic diagnosis. In adjudicating these issues, the Strasbourg organs have consistently demonstrated considerable self-restraint and have focused on the contracting states' margin of appreciation in areas where a common European approach is lacking. Nonetheless, more recent judgments tend to weaken this approach. Accordingly, the Court demands the contracting parties to show a high level of consistency when implementing their own policy choices. This leads to a closer level of monitoring and thus narrows the margin of appreciation. At the same time, considerations of a moral nature allow deviations from a common European trend. In addition, the ECtHR has recently identified not only violations of Article 8 ECHR (protection of private and family life), but also of Article 3 ECHR (prohibition of inhuman or degrading treatment) in the reproduction area. After providing an overview of the case law, this Article summarizes the main features of the margin of appreciation doctrine in this area from a critical perspective. It identifies similarities between this doctrine and institutional limitations of constitutional adjudication in national law. Moreover, it argues for positive rather than negative grounds for the recognition of a state's margin of appreciation. Such grounds could stem from national constitutional law instead of the lacking consensus among contracting parties. Coupled with the ECtHR's continuing self-restraint in protecting unborn life through Article 2 ECHR, the Article argues that the Court's broad interpretation of Article 8 ECHR precludes a genuine weighing of conflicting legally protected interests. All in all, the significant gaps and inconsistencies in the Court's reasoning result in considerable unpredictability of its judgments that is prone to negatively affect its acceptance.