European Court of Human Rights comments on private life were deemed an “unacceptable pronouncement on the status of the human embryo” by five of its judges, including Chief Justice Emeritus Vincent De Gaetano.
In a joint partly dissenting opinion, the five judges said: “To find that the embryo is ‘a constituent part’ of the applicant’s identity is a far-reaching finding indeed. Unlike the majority, we do not consider that embryos can be reduced to constituent parts of anyone else’s identity – biological or otherwise.
“Whilst sharing the genetic make-up of its biological ‘parents’, an embryo is, at the same time, a separate and distinct entity albeit at the very earliest stages of human development.
“If a human embryo is no more than a constituent part of another person’s identity then why the abundance of international reports, recommendations, conventions and protocols that relate to its protection? These instruments reflect the broad general acceptance within the human community that embryos are more than simply ‘things’. They are, as the Parliamentary Assembly of the Council of Europe has put it, entities ‘that must be treated in all circumstances with the respect due to human dignity’.”
The other four ECHR judges joining Chief Justice Emeritus De Gaetano in expressing such an opinion were Judge Josep Casadevall (Andorra), Judge Ineta Ziemele (Latvia), Judge Ann Power-Forde (Ireland) and Judge Ganna Yudkivska (Ukraine).
Their stand forms part of a Grand Chamber judgment published last Thursday finding that Italy did not violate the European Convention on Human Rights when it stopped Rome resident Adelina Parrillo from donating to scientific research embryos obtained from in vitro fertilisation not destined for a pregnancy.
The ruling came as the government in Malta said it was reviewing IVF legislation, with the Labour Party Women’s Section calling on the authorities to explore the possibility of allowing surrogacy, with a limitation on the commercial aspect of it.
In the ECHR case, Ms Parrillo submitted that, in 2002, she and her partner sought assisted reproduction techniques and five embryos were obtained and stored by cryopreservation. Her partner died in November 2003, before the embryos could be implanted and, after deciding not to go ahead with a pregnancy, Ms Parrillo said she wanted to donate them to scientific research. However, a 2004 law banned experiments on human embryos, even for scientific research. Her request was therefore refused.
To find that the embryo is ‘a constituent part’ of the applicant’s identity is a far-reaching finding indeed
She insisted with the Court that the embryos had been obtained before the 2004 law entered into force and, thus, it had been entirely legal for her to have them preserved rather than proceeding with immediate implantation.
This was the first time that the ECHR was asked to decide whether the “right to respect for private life” could encompass the right to make use of embryos obtained from IVF for the purposes of donating them to scientific research.
The Court noted that embryos obtained through IVF contained the genetic material of the person in question and represented a constituent part of the individual’s identity.
The ban on donating to scientific research embryos obtained from IVF not destined for implantation constituted an interference with Ms Parrillo’s right to respect for her private life, especially as the donation of embryos was not regulated in Italy at the time when she had had recourse to that reproductive technique However, Italy had to be afforded a wide margin of appreciation in this case, which raised sensitive moral and ethical issues.
The Court noted there was no European consensus on the delicate question of the donation of embryos not destined for implantation. Both the Council of Europe and the European Union accepted that the domestic authorities had a broad margin of discretion to enact restrictive legislation where the destruction of human embryos was at stake.
In the circumstances, the ECHR concluded that Italy had not overstepped the wide margin of appreciation enjoyed by it in this case and that the ban in question had been “necessary in a democratic society”.
The judges joining Chief Justice Emeritus De Gaetano in their partly dissenting opinion noted that although the Court found that matters related to procreation constituted an aspect of a person’s private life, it refrained from pronouncing on the fundamental question as to when ‘protected life’ under the Convention started. It had, therefore, avoided, they pointed out, making any ruling on the status of the human embryo, as such.
“The Court has now ruled, for the first time, that such matters as ‘deciding the fate of’ or ‘making use of’ human embryos fall within an individual’s right to respect for private life… Accordingly, this judgment marks a critical turning point in the Court’s jurisprudence. It makes a far-reaching and, in our view, an unacceptable pronouncement on the status of the human embryo,” they said.
The five judges added that the “majority’s finding is disconcerting not only in terms of the utilitarian overtones used when speaking of the human embryo but also because of the disturbing rationale that forms the basis of its pronouncement”.