A married couple from Malta who were not allowed to continue IVF have been awarded €8000 in damages by the European Court of Human Rights.
Natasha and Gilbert Lia had a state-funded cycle of IVF with ICSI in 2014 which was unsuccessful. They wanted to have a second, self-funded cycle the following year but were prevented from doing so because Natasha had turned 43.
Malta's Embryo Protection Authority (EPA) forbade their treatment on the basis of the following provision in their protocol: For the purpose of this Protocol, the EPA feels that it is desirable that the woman, who is entitled to treatment should be between the age of 25 and 42 years...'
The Lias argued that the law was discriminatory based on age, and that they met the other criteria in the protocol – being married and having a reasonable chance of success, based on medical opinion. They argued in several Maltese courts that the age limit did not appear in Maltese law, and that the wording 'feels that it is desirable' meant that the EPA had the discretion to make exceptions. After exhausting legal recourses in Malta they appealed to the European Court of Human Rights (ECtHR) in Strasbourg, France.
The ECtHR considered whether the Maltese state's decision 'to deny the applicants access to IVF procedures which were available to the population and which they sought to pay for themselves' constituted an interference with the Lias' human rights, and if so whether such interference was justified.
The court agreed that the protocol formed part of Maltese law, but went on to consider that being 'in accordance with the law' requires that the quality of the law be such that 'it should be accessible to the person concerned – who must moreover be able to foresee its consequences'.
Given that the Maltese courts and the EPA itself differed in their interpretation of whether the EPA had discretion to disapply it on the basis of medical findings, the ECtHR found that the provision in the protocol was 'incoherent and thus lacked the required foreseeability'. They also noted that the provision had been reworded since the time of the Lias' treatment.
On that basis, the court ruled that the law that interfered with the Lias' right to private and family life was 'of insufficient quality' and therefore constituted a violation under the convention. They were awarded €8000 in damages and a further €2500 in costs.