The Constitutional Court decided on the constitutional complaint of a complainant who challenged a judgment by which the Supreme Court granted an appeal of the Health Insurance Institute of Slovenia before the Supreme Court and modified the judgments of the first and second instance Social Courts such that it dismissed the claim of the complainant to annul the first and second instance decisions of the Institute. The Institute dismissed her request for reimbursement of the costs of two biomedically-assisted procreation procedures carried out in the Czech Republic because the complainant underwent the two procedures without the authorisation of the National Commission for Biomedically-Assisted Procreation and after having reached 43 years of age. The Supreme Court stressed that in order to be able to successfully invoke the right to reimbursement of the costs of treatment in another EU Member State, the insured person must first fulfil the conditions for obtaining the medical service in question in accordance with the regulations in force in the Republic of Slovenia. Since the complainant did not fulfil the age requirement determined by the second paragraph of Article 37 of the Rules on Compulsory Health Care Insurance as regards the invocation of the right to biomedically-assisted procreation, she is not entitled to reimbursement of the costs of the medical services carried out in the Czech Republic.

By an order, the Constitutional Court initiated, ex officio, proceedings for the review of the constitutionality and legality of the second paragraph of Article 37 of the Rules on Compulsory Health Care Insurance insofar as it determined that within the framework of specialist outpatient activities, women have the right to biomedically-assisted procreation until they reach 43 years of age. It stressed that the legislature regulated the right to health care, insofar as this right encompasses medical procedures enabling couples to conceive a child (i.e. the treatment of infertility and biomedically-assisted procreation) and thus the exercise of the right determined by Article 55 of the Constitution, by the Infertility Treatment and Procedures for Biomedically-Assisted Procreation Act. When determining who is entitled to procedures for biomedically-assisted procreation, the legislature also determined that the age of the beneficiary is important, along with the other circumstances determined by that Act. It namely determined that the woman must be of an age appropriate for giving birth. This Act does not contain other provisions concerning this condition that the beneficiary of such procedures for biomedically-assisted procreation must fulfil.

The Health Insurance Institute of Slovenia adopted the Rules on Compulsory Health Care Insurance, which is a general act issued for the exercise of public authority, and which, with regard to the right to biomedically-assisted procreation, determines, inter alia, that within the framework of specialist outpatient activity, women have the right to biomedically-assisted procreation from 18 years of age until they reach 43 years of age. The Health Insurance Institute of Slovenia stated that by determining the upper age limit it only concretised the statutorily determined condition regarding age for a woman to be entitled to biomedically-assisted procreation, namely that she must be of an age appropriate for giving birth. The Constitutional Court did not concur with such justification provided by the Institute. Had the legislature wished that the Institute concretise the mentioned condition regarding age by determining an (absolute) age limit after which biomedically-assisted procreation is no longer admissible, it should have expressly authorised it to do so. However, the Infertility Treatment and Procedures of Biomedically-Assisted Procreation Act does not contain such an authorisation.

In light of the above, the Constitutional Court assessed that the implementing act, i.e. the Rules on Compulsory Health Care Insurance, limited, without express statutory authorisation, the right to biomedically-assisted procreation of those couples wherein the woman has reached 43 years of age. Thereby, the Rules on Compulsory Health Care Insurance exceeded the framework of the constitutionally admissible regulation of the human right to health care determined by Article 51 of the Constitution by implementing regulations. As the Constitutional Court stressed, the authorisation should be precise to such a degree that the Rules would only determine the manner in which the right should be exercised. By lacking such precision, the implementing act interferes with the subject matter of the statutory regulation.

Consequently, the Constitutional Court abrogated the second paragraph of Article 37 of the Rules on Compulsory Health Care Insurance insofar as it determined that within the framework of specialist outpatient activities, women have the right to biomedically-assisted procreation until they reach 43 years of age. The challenged Supreme Court judgment was based on the abrogated provision of the Rules on Compulsory Health Care Insurance; therefore, the complainant’s right to health care determined by Article 51 of the Constitution was violated thereby. Thus, the Constitutional Court abrogated that judgment and remanded the case to the Supreme Court for new adjudication.