European Court of Human Rights Hears Italian Bioethics Case

International   |   Grégor Puppinck   |   Sep 14, 2011   |   12:25PM   |   Strasbourg, France

On June 7th 2011, the second section of the European Court of Human Rights (ECHR) has communicated to the Italian government the case Rosetta Costa and Walter Pavan v. Italy (no. 54270/10) challenging the ban of pre-implantation genetic diagnosis in Italy.

In collaboration with the ‘Movimento per la vita italiana’ and fifty-two Italian MPs including Messrs. Rocco Buttiglione, Carlo Casini and Luca Volonte, the ECLJ has been granted leave by the Court on August 31st 2011 to intervene in the proceedings and to submit written observations.

This case, brought before the Court on September 20th 2010, concerns an Italian couple, asymptomatic carriers of cystic fibrosis, wishing to resort to pre-implantation genetic diagnosis (PGD) to conceive in vitro and artificially select an embryo that doesn’t carry cystic fibrosis. They claim their right to respect private and family life has been violated, because law 40/2004 does not allow them to resort to PGD.  Furthermore, in comparison to sterile or infertile couples and to couples where the man carries a sexually transmitted disease (such as AIDS and the hepatitis B and C viruses), they believe they are being discriminated against, as law 40 would enable these couples to resort to assisted reproduction (but not to PGD).

In Italy, law 40/2004, which governs the rules of assisted reproduction, was approved after a lengthy national debate. In principle, it prohibits the pre-implantation genetic diagnosis. Its opponents, coming from essentially radical movements, and accusing the law to be of Christian ethos, have tried on many occasions to revoke it, including by referendum. All these attempts have failed. The case Costa and Pavan is a new attempt to revoke this law, no longer by means of the legislator or the Italian people, but by an international authority. Significantly, the lawyers defending the applicants in this case are those who defended Soile Lautsi in the Italian crucifix case.

It is worth noting another very similar case – S.H. and others v. Austria – has recently been referred to the Grand Chamber of the ECHR on appeal.  In that case, the court held before the referral that Austria’s prohibition of heterologous assisted fertilization (i.e. with ova or sperm donation) is a violation of the right to respect for private and family life and an unjustified discrimination. The German and Italian governments intervened in this case by submitting written observations to the Grand Chamber. The ECLJ also intervened (see infra the list of attached documents), as well as some other NGOs. The ruling of the Grand Chamber is still pending.

The case Costa and Pavan v. Italy raises questions of admissibility and merits.

With regard to admissibility, as highlighted by the facts of the case, it should be noted that the applicants would like to resort to a PGD. However, there is nothing to indicate that they referred a request to the national courts, or that such a request was refused. As a result, they can neither claim to be victims of a violation of the Convention, nor to have exhausted every available domestic remedy. This application is actually an actio popularis, i.e. an attempt to challenge, in a direct and abstract manner, the law itself. The Court is clear on this point, stating that the Convention doesn’t allow the possibility of taking an actio popularis for the purpose of interpreting rights acknowledged in the Convention. Also, it doesn’t permit the individuals to challenge the provisions of a domestic law, simply because they feel it infringes the Convention, without having been directly subjected to the consequences[1]. In order to be a victim of violation, a person must have been directly affected by the consequences of the disputed measure. Furthermore, to take a legal action before the European Court, the person must have brought the case before the domestic courts and have exhausted all available domestic remedies.

Thus, the case should be closed for inadmissibility in the absence of a proven victim status, and a failure to exhaust domestic remedies. Surprisingly, the Court decided to pass the case for observations onto the government, soon after its commencement on September 20th 2010. It may have been different if the case wasn’t so politically sensitive.

On the merits, the case reverts to the question of the ‘right to child’ but under the eugenic point of view of the ‘right to genetically select a child’. In the case Evans v. the UK[2], the Court’s Grand Chamber established on this point that the right to respect for private and family life (Article 8) also covers ‘the right to respect for both the decisions to become and not to become a parent’. However, it is well established that neither the protection of private life nor the protection of the right to marry and found a family (Article 12) covers a ‘right to child’, either naturally or artificially conceived, or adopted. The Court repeated this on several occasions: ‘the right to procreation is not covered by Article 12 or any other Article of the Convention’[3]. Thus, there is no subjective right to procreate but only a protection of the couple’s right not to be prevented from founding a family[4].

The right to respect for private and family life and the right to found a family don’t confer the right to resort to various techniques of assisted reproduction. In essence, the assisted reproduction exceeds the field of private life. The State must respect the couple’s desire to be parents, but it cannot be indifferent to the means used to fulfill this desire, henceforth it implies the moral and material investment of society. The public stakes related to assisted reproduction, and even more to PGD, are so important that resorting to this technique cannot be fully covered by the protection of private life. The same applies, for example, to the adoption proceedings, exceeding the field of private life because they involve society. The Court declared in S.H. v. Austria: ‘[the Court] would emphasize that there is no obligation on a State to enact legislation of the kind to allow artificial procreation’ (No. 74). To accept a right for the couples to procreate by the means of assisted reproduction would be contrary to the Court’s case-law and is an inconsiderate extension of the scope of Article 8. It would be equivalent to the recognition of a right to a child and oblige European States to eventually authorize the assisted reproduction for same-sex couples and surrogacy. As the French professor Francoise Dekeuwer-Defossez says[5], a right to a child cannot exist because one cannot have a right to a person. A right to a child would be the reification of a human being.

Moreover, insofar as the PGD presupposes not only the eugenic selection, but also the deliberate and systematic destruction of embryos, this technique cannot be the subject of a ‘right’ within the meaning of the Convention. The Grand Chamber stated this in the case A. B. and C. v. Ireland, in the context of abortion[6].

The application Costa and Pavan v. Italy aims to challenge the decision of the Italian people regarding the regulation of the assisted reproduction. Law 40/2004 effectively expresses a decision made at the end of a lengthy democratic process and from which emerges a bioethical consensus ethically balanced. According to the Court’s case-law, such a decision is the concern of the national margin of appreciation, because it deals with moral and ethical issues which, in addition, are not subjected to a consensus between the Member States. The Italian people tried to achieve a good balance in its legislation between the several interests at stake, in the respect of the rights notably enshrined in the Convention.

Thus, in regulating the PGD, the State took into consideration, among others, the prohibition of eugenics, the protection of the interests and the health of the child and the woman[7], the protection of the medical practitioner’s rights, the protection of ethics and morals[8], and the protection of the right to life of the unborn. As for the discrimination, the couple Costa and Pavan claim to be subjected to, the Court established that only a differential treatment devoid of reasonable and objective justification between persons facing similar or comparable situations is likely to be discrimination[9]. Prohibition of discrimination refers only to rights enshrined in the Convention; in other words, it is not an autonomous right.

Thus, insofar as the PGD doesn’t enter the field of respect to private life, the Court should decide that there is no need to continue to examine this complaint. If the Court decided, conversely, to examine it, one should keep in mind that the Italian legislation laid down the principle of PGD’s prohibition. Law 40 enables sterile or infertile couples to resort to assisted reproduction to procreate (in vitro fecundation). The provision was extended to couples where the man carries a sexually transmitted disease, because the sexually transmittable characteristic provokes de facto a form of sterility. But Law 40 doesn’t enable them to resort to the PGD, in opposition to the applicant’s assertions.

The decision to authorize the assisted reproduction but to prohibit the PGD corresponds to the distinction between eugenic and therapeutic purposes. It is in this distinction, that the matter lies on the balance of Italian law. This distinction is perfectly reasonable and objective; moreover, it pursues the inestimable purpose of preserving the dignity and right to life of the embryo. There is no unjustifiable differential treatment and thus, no discrimination.

To conclude, in light of these objections, it is advisable to say that this application should be declared as inadmissible for non-exhaustion of domestic remedies and a lack of victim status within the meaning of the Convention. In addition to assuming that the applicants have been meeting the requirements of admissibility, the application should be dismissed as an obviously erroneous assumption, because of the balance maintained by the State between the different interests at stake.

Related documents (in French):

*** Note: Grégor Puppinck is the director of the European Centre for Law and Justice, an international, Non-Governmental Organization dedicated to the promotion and protection of human rights in Europe and worldwide.

[1] ECHR, GC, April 27th, 2010, Tanase v. Moldova (no. 7/08), § 104.

[2] ECHR, Evans v. the United Kingdom [GC], no. 6339/05, § 71-72, ECHR 2007 IV

[3] ECHR, Margarita Šijakova and Others v. “the former Yugoslav Republic of Macedonia” (Dec), no. 67914/01, March 6th,2003.

[4] Com. EDH X and Y v. the United Kingdom, application no. 7229/75, December 15th, 1977, 12 DR 32: « it is implicit in Article 12 that it guarantees a right to procreate children».

[5] Françoise Dekeuwer-Défossez, « Réflexions à verser au dossier « droit à l’enfant » », Journal Lamy Droit Civil 2010, no. 76 ; see also M. Pichard, Le droit à : étude de la législation française, LGDJ 2006 and H. Fulchiron, Du couple homosexuel à la famille monosexuée ?, AJ Famille 2006 p. 392 ;

[6] ECHR, GC, December 16th, 2010, A, B and C v. Ireland, no. 25579/05.

[7] See notably the duty of the State «to protect the mother’s and child’s health during pregnancy and birth » (Odièvre v. France, no. 42326/98, judgment February 13rd, 2003, § 45) and to take « the child’s best interest » (Gnahoré v. France, no. 40031/98, judgment January 17th, 2001, § 44) into consideration.

[8] A, B and C v. Irlande, no. 25579/05, § 222, 226 et 227.

[9] D.H. and others v. the Czech Republic, [GC], no. 57325/00, § 175.