Johanna Westeson - The ICHRP

eleased from prison, making natural conception unlikely. The issue was whether they had
the right to artificial insemination, which had been denied to them by British authorities,
under Article 8 of the Convention.
The Grand Chamber of the Court stated that room for manoeuvre, or margin of
appreciation, accorded to a state under the Convention is restricted when “a particularly
important facet of an individual's existence or identity is at stake (such as the choice to
become a genetic parent).” It found that the policy applied by the British government,
while not a blanket ban, set a threshold so high against the applicants that it did not
produce a balanced assessment of the competing individual and public interests. The
absence of this assessment, in an issue of such significant importance for the applicants,
was found to fall outside of any acceptable margin of appreciation. Accordingly, the Court
ruled that there had been a breach of Article 8.
This case does not on its face provide for a right to artificial insemination facilities for
prisoners. The Court restricted itself to stating that a policy as harsh and restrictive as the
British one fails to respect the importance of the matter for the individuals involved. The
Court called for a more generous policy and procedure in assessing applications of this
nature. The decision is interesting however in that it acknowledges that the choice to try to
become a genetic parent is a “particularly important facet of an individual’s existence or
identity.” There is little room for state restrictions of such important aspects of the right to
respect for family and private life, even in relation to persons whose circumstances allow
for legitimate restriction of other rights. In relation to sexual health, this case opens the
door towards a generous understanding of what artificial insemination may mean for
individuals, and implies that access to such reproductive health measures must be broad. It
suggests that the state cannot put a blanket ban – or a near blanket ban – on reproduction
for any part of the population. Even more interestingly, it also shows that under some
circumstances the state may be obliged to provide for the services involved, as a positive
obligation under Article 8. 283
European Convention on the Adoption of Children
A significant change on the European level for the recognition of adoption of children in
non-conventional families came with the adoption of the revised version of the European
Convention on the Adoption of Children 284 in 2008. The earlier 1967 version of the
convention stated that “[t]he law shall not permit a child to be adopted except by either two
persons married to each other, whether they adopt simultaneously or successively, or by
one person” (Art. 6.1). This conflicted with Sweden’s decision to authorize adoption by
same-sex couples in 2002 and the United Kingdom’s decision to do the same in 2005. 285
The Convention was therefore revised to read:
States are free to extend the scope of this Convention to same sex couples who are married to
each other or who have entered into a registered partnership together. They are also free to
283 For a discussion on the right to conjugal visits in prison, see Section 2D: State regulation of sex in prisons.
284 Revised version, Council of Europe Treaty Series – No. 202. Open for signature on 27 November 2008,
not yet in force.
285 See Rosemary Horgan, ”The European Convention on Adoption 2008: Progressing the Children’s Rights
Polemic”, International Family Law, September 2008, available at
http://www.coe.int/t/e/legal_affairs/legal_cooperation/family_law_and_children%27s_rights/Documents/Rosemary%20Horgan%20Article.pdf.
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