15 March 2025
Modern society, particularly in Europe and specifically in Slovenia, enjoys increased longevity. On average, individuals are living more years than in previous times. On the other hand, we are living in a time when we are all facing the fact that the world’s population is rapidly ageing (the shape of the so-called ‘demographic pyramid’ is also changing), especially in the last century. According to the United Nations, in the year 1950, there were about 205 million people aged 60 years or over. In 2020, there were 1 billion people older than 60 years. By 2030, it is estimated that in the world will be 1,4 billion people aged 60 years or over, and by 2050, the world’s population of people aged 60 years and older will be 2.1 billion (doubled since 2020 – in 30 years!!!).
WHO defines reproductive health as the state of complete physical, mental, and social wellbeing and not merely the absence of disease or infirmity in all matters relating to the reproductive system and its functions and processes. Reproductive rights are based on the recognition of the fundamental right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children, and to have the information and means to do so, and the right to achieve the highest standard of sexual and reproductive health.
Rights to reproductive health include the right to life, liberty and the security of the person; the right to health care and information; and the right to non-discrimination in the allocation of resources to health services and in their availability and accessibility. Of central importance are the rights to autonomy and privacy in making sexual and reproductive decisions, as well as the rights to informed consent and confidentiality in relation to health services (Shalev, 1998). Reproductive rights also include the right to make reproductive choices free from discrimination, coercion and violence. The implementation of these principles represents a challenge for national courts and other bodies, particularly when it comes to medically assisted reproduction in its various forms, which is associated with older people / older adults.
The lifelong effects of sexuality and reproduction can affect all people in their later life. Still, women may be more vulnerable due to their reproductive roles and gender inequality in society. The negative consequences may be related to different subjective and objective reasons and may contribute to health problems in older age, also on sexual and reproductive health.
For example, poor food or housing, multiple pregnancies, inadequate support during pregnancy, inadequate care at the time of childbirth or even in the postpartum period, domestic violence, child marriages, menstrual poverty, low education, low income, misuse of drugs or alcohol….
When the first international human rights instruments were drafted, it was impossible to
foresee the impact of advances in medicine and health care in general. Therefore, the rights
of older adults and the obligations of States towards older adults were not explicitly codified at that time. Today, we are aware of the implications that longevity has for our society and our lives, both private and professional. This is why the elderly are often overlooked and marginalised. And one of such areas is reproductive and sexual health.
A growing number of women are delaying having children. The median age at first birth has risen (also in Slovenia) to 30+ years old, with subsequent births occurring into a woman’s 40s and 50s. The young adult stage of life is also usually when people make important life decisions, such as when and how to have children. Therefore, many programs and resources are focusing on these stages of life in relation to procreation. Preferences, priorities, and experiences related to family planning in relation to older adults are therefore often excluded from research. We should also keep in mind that a sexual life does not end when one’s reproductive years end. Therefore, programs, research, and open questions about reproductive rights for older adults are becoming more and more in focus.
UN defines “elderly” as a chronological age of 65 years old or older, while those from 65 through 74 years old are referred to as “early elderly” and those over 75 years old as “late elderly.” However, ageing is a universal, biological and natural process related to an individual. But advanced maternal age, or geriatric pregnancy, is facing a woman becoming pregnant at age 35 or older.
In the decision (Up-459/17-19), the Constitutional Court of the Republic of Slovenia was concerned with artificial insemination and access to medical treatment for women who wish to undergo the procedure but have exceeded the upper age limit set by the applicable legislation. The Constitutional Court of the Republic of Slovenia found that the provision of the law that limits access to artificial insemination for women over 43 years of age is not in compliance with the Constitution of the Republic of Slovenia. The Constitutional Court of the Republic of Slovenia ruled that such an age restriction violates the right to private and family life, which is protected by Article 35 of the Constitution of the Republic of Slovenia. The Constitutional Court of the Republic of Slovenia emphasized that the right to fertility treatment means the right to access appropriate medical services unless there are justified reasons to limit this right. The Constitutional Court of the Republic of Slovenia ordered the legislator to amend the legislation, as restrictions that are not medically justified and violate human rights are not in accordance with the Constitution of the Republic of Slovenia. The Constitutional Court of the Republic of Slovenia emphasized that restrictions on access to healthcare services, such as artificial insemination, must be based on objective medical reasons, not merely age. The Constitutional Court of the Republic of Slovenia also highlighted the importance of protecting family life and individuals’ right to have children. This decision is an essential step towards more excellent protection of human rights and equality in access to healthcare services.
With the right to artificial insemination also dealt ECtHR in the case Dickson v. UK – concretely with the refusal of artificial insemination to a couple, where the husband was in detention. The woman would have been 51 years old if she waited until after the man’s release. The ECtHR accepted as legitimate some of the government’s justifications for interference in Article 8 of the ECHR, including the need to keep public confidence in the prison system, to see the restriction as a consequence of detention, and because allowing such procedure would inevitably lead the child to face the absence of one of his parents. However, the ECtHR found that the lack of consideration of individual interests was disproportionate and violated Article 8 of the ECHR.
To conclude – the reproductive rights of older people are often overlooked in our society because of the stereotypical belief that older people are no longer sexually active. Because medicine today in the field of assisted reproduction allows even older individuals to fulfill their desire for a child potentially, it should not be overlooked that it is still the law that should set the limits. However, these limitations should not be based solely on an age threshold; they must be medically supported and objective.
