National moral choices in a cross-border context
How cross-border movement in the EU affects national standards
on sensitive issues like abortion, reproductive care and legal
recognition of same-sex relationships
Nelleke Koffeman LL.M, NUI Galway, 30 Sept 2013
Leiden University. The university to discover.
Cross-border abortions
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National moral choices
 Reproductive issues
 Assisted Human Reproduction
 Abortion
 Surrogacy
 Legal recognition of same-sex relationship
 Decision-making surrounding the ending of life
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National moral choices
 No or limited European
standards
 Patchwork of national laws
 Part of national identities?
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EU – United in diversity
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Art 4 (2) TEU
 ‘The Union shall respect the equality of Member
States before the Treaties as well as their national
identities, inherent in their fundamental
structures, political and constitutional, inclusive of
regional and local self-government. […]’
 Judicially enforceable?
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Common to these issue
 No harmonised EU standards and
those EU instruments applicable leave room
 ECHR leaves room
 National regimes differ considerably
 Cross-border movement
Leiden University. The university to discover.
Reproductive issues
Leiden University. The university to discover.
Different national regimes
 Constitutional norms such as protection of the unborn,
human dignity and protection of the family
 Treatment may be considered ethically unacceptable:
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abortion (grounds and time limits)
use of donor gametes
(commercial) surrogacy
Pre-implantation Genetic Diagnosis (PGD)
 Access to treatment may be limited on grounds of:
 civil status
 age
 combined gender (hence, sexual orientation)
Leiden University. The university to discover.
Legal recognition of same-sex
relationships
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Different national regimes
 Constitutional protection of
marriage and the family
 Legal recognition
 Marriage
 Registered partnership
 No legal recognition
 Parental rights
 Successive adoption
 Joint adoption
 Access to reproductive
care
Leiden University. The university to discover.
Limited/no EU standards
 Some health competence,
but only coordinating
 No substantive regulation
of reproductive issues
 No EU standards on abortion
 No relevant substantive
norms in Directive on in vitro
diagnostic medical devices
and EU Tissues and Cells
Directive
 Cross-border health care
Leiden University. The university to discover.
Limited/no EU standards
 No competence in respect of
family law, except
Art 81 (3) TFEU:
‘family law with crossborder implications’
 Where civil status is referred
to in EU law: national
definitions followed
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ECHR leaves room
 Vo v France (2004)
‘[…] the Court is convinced that it is neither
desirable, nor even possible as matters stand, to
answer in the abstract the question whether the
unborn child is a person for the purposes of Article
2 of the Convention […].
It follows that the issue of when the right to life
begins comes within the margin of appreciation
which the Court generally considers that States
should enjoy in this sphere […].’
Leiden University. The university to discover.
ECHR leaves room
 S.H. a.o. v. Austria (2011):
‘Since the use of IVF treatment gave rise then and
continues to give rise today to sensitive moral and
ethical issues against a background of fast-moving
medical and scientific developments, and since the
questions raised by the case touch on areas where
there is not yet clear common ground amongst the
member States, the Court considers that the
margin of appreciation to be afforded to the
respondent State must be a wide one […]. The
State’s margin in principle extends both to its
decision to intervene in the area and, once having
intervened, to the detailed rules it lays down in
order to achieve a balance between the competing
public and private interests […].’
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ECHR leaves room, however..
 Once state makes certain moral choice that comes
within scope of ECHR, principles of effectiveness and
non-discrimination apply
 ‘The Court considers that the uncertainty
generated by the lack of legislative
implementation of Article 40.3.3, and more
particularly by the lack of effective and accessible
procedures to establish a right to an abortion
under that provision, has resulted in a striking
discordance between the theoretical right to a
lawful abortion in Ireland on grounds of a relevant
risk to a woman’s life and the reality of its
practical implementation […].’
A, B and C v. Ireland (GC, 2010)
Leiden University. The university to discover.
ECHR leaves room
 Marriage special position
 ‘[…] marriage remains an
institution which is widely
accepted as conferring a
particular status on those
who enter it’
 ‘Marriage is singled out for special treatment under
Article 12 of the Convention.’
 Marriage has ‘deep-rooted social and cultural
connotations differing largely from one society to
another’
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ECHR leaves room
 Schalk and Kopf v.
Austria (2010)
 No obligation on States
to provide access to
marriage for same-sex
couples
 Same-sex relationships enjoy right to family life
 Pending cases: Greek case on partnerships
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Cross-border abortions
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Cross-border reproductive care
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Cross-border (commercial) surrogacy
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Cross-border movement
 No exhaustive official national statistics, but plenty of
anecdotal evidence and estimates
 European Society of Human Reproduction and
Embryology (ESHRE) 2008:
 A minimum number of 11,000-14,000 services
recipients are involved in Cross-border reproductive
care within the EU every year
 Irish Family Planning Association (IFPA): between
January 1980 and December 2008, at least 137,618
women travelled from Ireland for abortion services in
England and Wales
Leiden University. The university to discover.
Cross-border movement
 Eurostat: 12.8 million EU citizens – accounting for
2.5% of the total EU population – were living in
another Member State in the year 2011
 Commission 2011:
 Of the approx. 122 million marriages in the EU,
around 16 million (13%) have ‘a cross-border
dimension’
 In 2007 approx. 211,000 registered partnerships in
the EU, of which over 41,000 had an ‘international
dimension’
Leiden University. The university to discover.
Responses to cross-border movement
 Reports of refusals to provide after-care
 E.g. after abortion or after IVF treatment with
donated gametes
 Reports of refusals to issue civil status documents to
same-sex couples who go abroad
Leiden University. The university to discover.
Legal responses – national level
 Private international law /
conflict-of-laws rules
 Public policy clauses
 e.g. if commercial
surrogacy
 ‘Downgrading’ or
‘upgrading’ of foreign
civil status
Leiden University. The university to discover.
Legal responses - ECtHR
 A, B and C v Ireland (2010) – Foreign abortion option
element in necessity test:
‘[…] having regard to the right to lawfully travel
abroad for an abortion with access to appropriate
information and medical care in Ireland, the Court
does not consider that the prohibition in Ireland of
abortion for health and well-being reasons, based
as it is on the profound moral views of the Irish
people as to the nature of life [..] and as to the
consequent protection to be accorded to the right
to life of the unborn, exceeds the margin of
appreciation accorded in that respect to the Irish
State.
Leiden University. The university to discover.
Legal responses - ECtHR
 Pending cases:
 Taddeucci v. Italy (no. 51362/09):
Inability of Italian/New Zealand same-sex couple to
live together in Italy, because the national
immigration legislation does not allow unmarried
partners to obtain a family member’s residence
permit.
 Fedotova-Fet and Shipitko v. Russia:
Refusal of the Russian authorities to register the
Canadian same-sex marriage of Russian nationals
on the ground that under the Family Code a
marriage can only be registered between a man
and a woman.
Leiden University. The university to discover.
Legal responses – EU
 Patient Mobility Directive:
‘This Directive respects and is without prejudice to the
freedom of each Member State to decide what type of
healthcare it considers appropriate. No provision of
this Directive should be interpreted in such a way as
to undermine the fundamental ethical choices of
Member States.’
 Many open questions re. application of patient
mobility directive to reproductive treatment
 No reimbursement for treatment that is not amongst
the benefits under the national scheme
Leiden University. The university to discover.
Legal responses – EU
 ‘Family member’ in Free
Movement Directive (2004/38)
and Family Reunification
Directive (2003/86):
 No definition of ‘spouse’
 ‘registered partner’ defined
according to law of the
host state
 So far no case before CJEU
Leiden University. The university to discover.
Legal responses – EU
Commissionner Reding 2010:
‘If you live in a legallyrecognised same-sex
partnership, or marriage, in
country A, you have the
right – and this is a
fundamental right – to take
this status and that of your
partner to country B. If not,
it is a violation of EU law, so
there is no discussion about
this.’
Leiden University. The university to discover.
Proposed EU instruments
 Green Paper on Recognition
of the effects of civil status
records
 COM(2011)126 and 127 on
property regimes
 Definitions in national law
 Applicable law:
 Married couples have a
choice of law
 Rp’s: state of registration
 FRA: discriminatory
Leiden University. The university to discover.
Implications of current situation
Three actors
Individual
State
Union
Leiden University. The university to discover.
Implications for the individual
 Broader range of options
 But also obstacles
 Legal impediments
 Non-recognition or downgrading
of civil status in other MS:
‘limping relationships’
 PIL-issues, e.g. public policy
exceptions in cross-border
commercial surrogacy
 Financial burdens
 Information
 Language barriers
Leiden University. The university to discover.
Implications for the State
 National choices
undermined
 Indirect pressure to
reform?
 National identity
under pressure?
 Outsourcing
 (to a certain extent)
‘export’ of regimes
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Implications for the Union
Leiden University. The university to discover.
Do these situations ask for
(more) regulation?
 And if so, at what level?
 EU?
 States?
 Arguments for (some form of) EU regulation
 Mutual recognition
 Non-discrimination
 The best interests of the child
Leiden University. The university to discover.
However…
 Perspective chosen is important:
 Different legal perspectives (fundamental rights,
free movement, PIL etc)
 Not only legal, but also (very) political questions
 Pragmatic vs. principled approach
Leiden University. The university to discover.
Possible ways forward?
 Possible EU regulation
 Automatic recognition?
 ‘Portable relationships’?
 ‘Portable parental links’?
 Harmonisation of PIL?
 Be aware: effects of recognising foreign choices
go further than one may expect at first sight
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