Reproductive rights before the European Court of Human Rights: States' discretion or European supervision?

Another criterion often applied by the Court when concerned with matters of abortion and MAP has been the principle of proportionality. Such principle is based on the idea that national laws restricting individual liberties should be proportionate and should strike a fair balance between the interests concerned, those of the individual on the one hand and those of the society on the other. Another standard related to the principle of proportionality has been that of imposing on Member States a proportionate balance between the means employed and the aim pursued, in order to not impose a too high disadvantage on the individual for the sake of the society. The application of this principle has been defined by some scholars as “the other side of the margin of appreciation” since a stricter proportionality test has the main effect of limiting the discretion of Member States.

Specifically, the Court, in order to evaluate the proportionality of a given national legislation, determines whether the interferences of the state are based on "relevant" and "sufficient" reasons. If the interference is not deemed to have a sufficient reason, therefore the relevant law would not be held proportionate and consistent with the requirements imposed by Art. 8, (see supra Dickson v. UK, Costa and Pavan v. Italy).

The Strasbourg judges have also adopted the “less restricting alternative doctrine”. When proportionality is assessed the Court scrutinises whether the legitimate aim may be achieved by less burdensome measures for the individual. Whether a less restrictive option is available the proportionality test will not be passed and the relevant restrictions will be held in violation of Art. 8 of the Convention.

For instance, this was the case in Dickson v. UK, where the Court held the that requirements imposed by the UK law to the applicants in order to access the fertility treatment were too high and the aim pursued by the UK authorities could be achieved by less restrictive measures.
Another method adopted by the Court in order to assess proportionality has been the comparison of the different legislative measures in the other Member States of the Convention. Whether a consensus exists on a specific matter the Court has been prone, even with exceptions, to restrict the margin of appreciation afforded to states.

However such evaluation criterion has not always been coherently applied by the Court that sometimes has opted for a less strict standard of proportionality. For instance, this was demonstrated in the A, B & C with regard to abortion issues and in S. H. case with regard to MAP issues.

In the former case, notwithstanding an emerging European consensus, the Court considered Irish legislation as striking a fair balance between A and B interests on one side and the interests of the society on the other (see supra Chapter 2, para. 2.5). In the latter case the Court focused on the "duration" of an emerging consensus at the European level with regard to in vitro and in vivo fertilisation, considering the restrictive Austrian legislation in accordance with the requirements of Art. 8 of the Convention (see supra Chapter 3, para. 4).