The Slovenian Constitutional Court’s Decision: Equal Access to Biomedically Assisted Fertilisation for All?

Introduction

Slovenia, like many European countries, faces a long-term decline in birth rates, recording just 1.51 births per woman in 2023 (Eurostat, 2023). Despite these demographic trends, many EU countries continue to restrict access to ART for non-heterosexual couples and single women. Slovenia’s ZZNPOB limited ART access strictly to heterosexual couples in a legally recognised relationship. This exclusion, rooted in traditional family models, was challenged for breaching constitutional protection and international human rights obligations, by the 38 members of Slovenia’s National Assembly (the First Applicant) and the Advocate of the Principle of Equality of the Republic of Slovenia (the Second Applicant) (Constitutional Court of the Republic of Slovenia, 2024).

Problem Description and Background

The First Applicant argued that Article 55 of the Slovenian Constitution guarantees every individual the right to freely decide whether to have children or not. The exclusion of single women and women in same-sex relationships from ART constituted discrimination based on marital status and sexual orientation, violating Article 14 (equality before the law) of the Constitution. Denying ART to these groups also infringed the right to private and family life, protected under Article 8 of the European Convention on Human Rights (ECHR) (Constitutional Court of the Republic of Slovenia, 2024).

The Second Applicant supported the arguments of the First Applicant and emphasised that the ZZNPOB’s exclusion targeted women who were infertile but not in a legally recognised heterosexual relationship (single, widowed, or divorced women, and women in same-sex partnerships). Such restrictions had no legitimate justification and violated the rights to health, family life, and equality. The Second Applicant also criticised the traditional assumption that a child must have both a mother and a father as outdated and not grounded in law or child welfare research (Constitutional Court of the Republic of Slovenia, 2024).

The Court reviewed Articles 5, 6, 8, 12, 22, 23, and 24 of ZZNPOB and applied a four-step test to determine whether the exclusion of single women and same-sex female couples was unconstitutional. The test asked the following questions:

1. Has the restriction affected fundamental rights?
2. Is there a different treatment between comparable groups (using single women and married/unmarried heterosexual couples as comparable groups)?
3. Are these groups in similar circumstances?
4. Does the discrimination have a constitutionally valid justification (Constitutional Court of the Republic of Slovenia, 2024)?

Under Slovenian law, Article 14 of the Slovenian Constitution prohibits discrimination based on personal circumstances, including marital status and sexual orientation. The Court also emphasised that Article 8 of the ECHR protects the right to private and family life and Article 14 of the ECHR prohibits discrimination in the enjoyment of these rights. Both rights from the ECHR are applicable to the case at hand, as Slovenia is a member state of the Council of Europe and is legally obliged to respect the ECHR as its contracting party (Constitutional Court of the Republic of Slovenia, 2024).

The Court decided that single women with fertility issues are in a similar position to heterosexual couples facing male infertility. Denying them ART based solely on marital status or sexual orientation violated the principle of proportionality and equality before the law. The Court found that no credible evidence was presented by the government or by the Slovenian National Assembly that children of same-sex or single parents are worse off than those raised in heterosexual families. The ruling is consistent with prior decisions of the Constitutional Court (e.g., decision no. U-I-91/21), where the Court emphasised that the burden of justification lies with the state, especially when fundamental rights are at stake (Constitutional Court of the Republic of Slovenia, 2024).

The Court reiterated that state protection of human rights must evolve with changing societal norms and scientific understanding. Slovenia’s legal framework already permits adoption by single individuals and same-sex couples, undermining arguments that children must be raised in dual- and heterosexual parent households (Constitutional Court of the Republic of Slovenia, 2024).

The Constitutional Court has found that the denial of ART access clearly affected fundamental rights, particularly the right to decide freely about parenthood. Single women and women in same-sex relationships were treated differently compared to heterosexual couples, despite being in comparable situations of infertility. Thus, the Court ruled the provisions of ZZNPOB unconstitutional and granted the National Assembly one year to revise the legislation. Until then, the discriminatory provisions should remain in effect in order to prevent legal uncertainty (Constitutional Court of the Republic of Slovenia, 2024).

Most judges supported the majority ruling, highlighting the evolution of family structures and the need for laws to reflect these changes. Judges Knez, Accetto, Šugman Stubbs, and Mežnar noted in their separate affirmative opinions that previous policies were shaped more by political than scientific or legal considerations. They emphasised that denying a child the right to be born due to family structure is unjustifiable (Knez, 2024), criticised past biases against single motherhood, and noted no evidence that children of single mothers are disadvantaged. They also warned against rollbacks of acquired rights, referencing the U.S. Supreme Court’s reversal on the right to abortion. (Constitutional Court of the Republic  of Slovenia, 2024).

On 25 March 2025, Slovenia’s ruling coalition (Levica/“The Left”, Gibanje Svoboda/“The Freedom Movement”, and Socialni Demokrati/“Social Democrats”) introduced a legislative amendment to align the ZZNPOB with the Constitutional Court’s decision (RTV SLO, 2025). The proposal expands ART access to same-sex female couples and single women. It redefines the ZZNPOB’s purpose from treating infertility to enabling conception, regardless of marital status for women (National Assembly of the Republic of Slovenia, 2025). The act was adopted in the National Assembly on 18 June 2025.

However, concerns regarding unjustified discrimination remain, as the ZZNPOB still unjustifiably excludes some groups from ART.

Policy Options and Recommendations

The suggested revised law omits the definition of medical indications from the definition of the ZZNPOB’s purpose, potentially weakening its legal consistency with the name of the act (National Assembly of the Republic of Slovenia, 2025). However, the definition of  infertility and infertility treatments still exist on an international level. The World Health Organisation (WHO) defines the medical definition of infertility as “a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after twelve months or more of regular unprotected sexual intercourse” (Vayena et al., 2002). This shows that the definition and regulation of ART is problematic on national and international scales, as the WHO’s definition of infertility is based on heteronormative biology. This antiquated definition of ART should be updated to include social infertility in order to consider single men, same-sex couples, and trans people, as all of the mentioned groups remain unjustly excluded (American Society for Reproductive Medicine, 2021). The medical definition should remain in use as before (Vayena et al., 2002).

For example, in the USA, single individuals and LGBTQ+ couples interested in building a family by biological means are considered “socially infertile”. The reasoning behind this is that if insurance coverage is allotted only to those with physical infertility, then it is exclusive to the heterosexual community. Although some states, such as New York, have directly addressed this inequality by extending the definition of infertility and insurance coverage of infertility treatments to include all residents regardless of sexual orientation, this is not yet the norm everywhere else. The outdated definition of infertility is also one of the main issues affecting same-sex couples’ access to ART in the USA, as medical insurance companies hold on to the formal, medical definition of infertility to deny coverage. However, the current definition cannot exclude medical  indications (as happened to the current ZZNPOB’s proposal), as the reproductive treatments and artificial fertilisation both fit under the WHO’s definition of health and therefore cannot be omitted (Vayena et al., 2002).

However, in its ruling the Constitutional Court did not address the possibility of unconstitutionality of the ZZNPOB due to the lack of inclusion of same-sex male couples and single men, despite the fact that under Article 30 of the Constitutional Court Act (in Slovenian: Zakon o Ustavnem sodišču – ZUstS), the Court is not limited to the claims of the applicant (National Assembly of the Republic of Slovenia, 2021). Despite this, the question of whether the discrimination is unconstitutional remains, as some other groups are still clearly excluded from ART based on their personal circumstances. Due to the reasons mentioned, the lack of inclusion of same-sex male couples, transgender people and single men needs broader discussion in Slovenia and also on the European and international scale (Gestlife, 2025) (European Parliamentary Research Service, 2025). Under the current ZZNPOB amendments, surrogacy still remains illegal, meaning that same-sex male couples and transgender individuals are still excluded from ART and artificial fertilisation (RTV SLO, 2025). Any procedure of ART or IVF in order to carry out surrogacy is also criminally punishable under the Slovenian Criminal Code with up to three years of imprisonment (Article 121 § 4 of the Slovenian Criminal Code).

Inlcusion of Same-Sex Male Couples, Single Men and Trans People

Despite the widespread use of ART worldwide, only 20% of the global need is currently met. Access is highly stratified due to the fact that costs and insurance coverage determine its access (Adamson et al., 2023). In the Global South, ART access is also hampered by poverty, lack of healthcare infrastructure, and systemic inequalities (Mayers, 2024) (Mabweazara, 2024). Gender, class, and racial disparities continue to influence who can build families through ART (Courduriès et al., 2014). Many human rights bodies, including the Inter-American Court of Human Rights and the European Court of Human Rights, have ruled that access to ART and fertility treatments falls under the right to private and family life (Zegers-Hochschild et al., 2014) (The UN Office of the High Commissioner for Human Rights, 2023).

Same-Sex Male Couples and Surrogacy

Same-sex male couples also face layered discrimination in countries (including Slovenia) where surrogacy is prohibited. Since biological parenthood for male couples typically requires both an egg donor and a surrogate, the legal ban on surrogacy constitutes a de facto exclusion from parenthood via ART. Even in countries where surrogacy is allowed, legal parentage often remains uncertain or delayed due to post-birth procedures like Parental Orders, which can leave the intended parents without legal rights for a significant period (Mackenzie et al., 2019). At the same time, it needs to be taken into account that same-sex male couples face unique legal and ethical hurdles, as surrogacy and egg donation raise serious medical and ethical concerns, presenting risks for donors and surrogates alike (Mackenzie et al., 2019). 

Despite social stigma, data shows that children raised by same-sex parents fare as well as those in traditional families. Discriminatory assumptions about gender roles, breastfeeding, and child development lack scientific support (Mackenzie et al., 2019).

Transgender Individuals and ART

Transgender individuals are often discriminated against through outdated medical definitions of infertility, which fail to account for the fertility preservation or reproductive needs of people undergoing gender-affirming treatments. Many ART providers lack training or there is a lack of policies that accommodate non-binary or trans patients, resulting in exclusionary practices, misgendering, or outright denial of services (Chang et al., 2019). Insurance coverage also typically denies ART and fertility services for transgender people, unless linked to heterosexual infertility (American Society for Reproductive Medicine, 2025). Most medical education systems worldwide lack training on trans-inclusive care, and fertility preservation for transgender youth remains underdeveloped (Safer, et al., 2017). Trans parents are also often scrutinised despite showing similar parenting competence as cisgender parents. Research indicates no adverse outcomes for children raised by transgender parents (Stotzer, et al., 2014). 

Single Men and ART

While recent legislative and judicial attention has focused on expanding ART access for single women and same-sex female couples, single men remain largely excluded from these advances (Mayers, 2024). In many jurisdictions, ART and fertility treatment laws do not recognise single men as eligible recipients of reproductive services such as sperm donation or surrogacy. This exclusion is often rooted in outdated gender norms and assumptions about parenting, and it constitutes a form of discrimination based on both sex and marital status. Single men who wish to become parents face legal and financial barriers, particularly where surrogacy is prohibited or unregulated. This gap in legal recognition fails to acknowledge the legitimacy of single fatherhood and perpetuates unequal access to reproductive autonomy. For ART legislation to be truly inclusive, it must account for and correct the exclusion of single men, ensuring that all individuals (regardless of gender or relationship status) can exercise their reproductive rights equally (Mackenzie et al., 2019).

Policy Recommendation

Reproductive justice requires that ART laws and practices become fully inclusive, recognising the rights of all individuals, regardless of gender identity, sexual orientation, or marital status in order to pursue biological parenthood on equal terms. However, on the other hand, they need to take into account all the potential ethical risks (Onwuachi-Saunders et al., 2019). According to everything stated above the inclusive reproductive policies should include and carefully consider the following:

Funding of ethical research into ART outcomes among diverse family structures to guide evidence-based policymaking.

1. Clear, inclusive language in the definition of ARTs and artificial fertilisation access for all, while preserving its medical basis;
2. Legalisation and regulation of surrogacy, ensuring ethical protections for all parties;
3. Extension of ART access to same-sex male couples, transgender, and non-binary individuals;
4. Expansion of public insurance coverage for ART in order to reduce socioeconomic disparities;
5. Education of healthcare providers on inclusive and ethical ART care for LGBTQ+ communities;
6. Funding of ethical research into ART outcomes among diverse family structures to guide evidence-based policymaking.

Conclusion

The Slovenian Constitutional Court’s ruling is a historic affirmation of reproductive rights and equality in Slovenia. It calls for laws that reflect modern family realities and uphold the rights of all individuals to form families, not only for women, but regardless of gender, sexual orientation, or marital status. However, full equality on the national, international and European level will require legal reforms, structural changes, and a commitment to reproductive justice that includes affordability, ethical practices, and respect for diversity in family life. This is especially important due to the fact that different states are encountering increased issues with ART and access to artificial fertility (for example, Italian Higher Court in May 2025, France in June 2021, etc.) (Associated Press – PBS NewsHour, 2021) (France 24, 2025).

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