The Constitutional Court, based on the Human Rights Defender’s application, has examined in writing the case “On determining the compliance with the Constitution of points 1 and 2 of part 1 of Article 12 of the Law ‘On Human Reproductive Health and Reproductive Rights.'”

According to Iravaban.net, the Law “On Human Reproductive Health and Reproductive Rights” was adopted by the National Assembly on December 11, 2002, signed by the President of the Republic on December 26, 2002, and entered into force on July 7, 2003.

It is noted that as a result of amendments and additions to the law, the mentioned article was formulated as follows:

“1. The right to use reproductive assisted technologies belongs to:

1. A couple in a marriage registered (recognized as valid) under the legislation of the Republic of Armenia, only with the mutual consent of the woman (spouse), if one of the spouses is under 55 years of age (in case of carrying a pregnancy, the age threshold for women is set at up to 53 years);
2. A man or woman under 55 years of age who is not in a marriage registered (recognized as valid) under the legislation of the Republic of Armenia, at their own wish (in case of carrying a pregnancy, the age threshold for women is set at up to 53 years).”

What did the Constitutional Court find?

The applicant’s (Human Rights Defender) position

The Human Rights Defender argued that the disputed provisions establish an absolute prohibition on the right to use reproductive assisted technologies for women aged 53 and over who are in a marriage registered under the RA legislation, as well as for women aged 53 and over who are not in a registered marriage. In other words, domestic legislation provides a restriction on the right to use reproductive assisted technologies for women, based on a certain age threshold.

The Human Rights Defender noted that according to legislative regulations, regardless of any circumstance, including the presence of sufficient health conditions, women are deprived of the opportunity to use reproductive assisted technologies due to not overcoming the age threshold.

According to the applicant, the disputed regulations are problematic from the perspective of the right to privacy and family life, taking into account that they interfere with a person’s reproductive autonomy in an unlawful manner, including decisions to have or not to have children.

Citizens who addressed the Human Rights Defender raised the issue that they had applied to medical institutions to use reproductive assisted technologies but were refused because they did not meet the established age threshold. Moreover, one of the citizens, who was not married, applied to use reproductive assisted technologies at the age of 68, the other at the age of 57.

Based on the responses to inquiries sent by the applicant to various centers applying reproductive assisted technologies, after the adoption of the law, 19 women over the age of 53 applied to use these technologies and were refused due to age.

The respondent’s position

The National Assembly stated that according to the justification attached to the draft law, providing an age restriction will allow avoiding the probable risks associated with pregnancy in older women, considering that with age, the likelihood of obstetric and accompanying pathologies increases, which can lead to unfavorable, even fatal outcomes of pregnancy.

The respondent argued that the disputed provisions set the age at which the probability of diseases in individuals is higher and riskier.

Based on the above, the National Assembly claimed:

• Age restriction is not discriminatory if it is justified by legitimate public policy objectives, applied equally, and is proportionate,
• Age restrictions also solve a number of social problems: elderly parents approach retirement age, which can complicate income planning and proper fulfillment of children’s needs,
• Age restriction for using reproductive assisted technologies is justified, it aims exclusively to ensure the best interests of the child, stems from the principles of providing certain medical and social guarantees, and complies with the Constitution.

What legal position did the Constitutional Court express?

According to Article 31, part 2 of the Constitution, the right to privacy and family life may be restricted only by law for the purposes of state security, economic welfare of the country, prevention or disclosure of crimes, public order, health and morality, or protection of the fundamental rights and freedoms of others.

The Constitutional Court has recorded that age-related physiological changes affecting reproduction are not absolute and unconditional by their nature, therefore, they are not characteristic of all a priori and are subject to separate professional assessment in each case.

It is noted that elderly persons, such as those specified in the disputed legal provisions, are generally more vulnerable to various internal physiological processes and pathological phenomena, therefore, a special approach should be shown towards persons in the high age group when applying for reproduction through reproductive assisted technologies, to exclude as much as possible the dangers threatening their life, health, and normal development of the fetus due to fertilization through assisted technologies, while not leading to an absolute prohibition of the application of reproductive assisted technologies on the basis of age.

“Based on the above, the Constitutional Court finds that the age restriction of a person’s right to use reproductive assisted technologies, as an interference with a person’s right to privacy and family life, does not pursue a constitutionally legitimate purpose, therefore does not comply with the principle of proportionality of legal restriction set out in Article 78 of the Constitution,” the decision states.

Taking into account the fact that under the amended law, the age restriction on the right to use reproductive assisted technologies already applies not only to women but also to men, the Constitutional Court did not consider it necessary to examine the disputed legal provisions within the framework of the constitutional right to prohibition of discrimination.

The Constitutional Court decided that the age restriction does not comply with the principle of proportionality provided for in Article 78 of the Constitution, as it ignores the health characteristics of each individual and creates an unjustified barrier. For this reason, the court recognized the disputed provisions as unconstitutional and invalid.

The full decision is available here.

Mariam Shahnazaryan