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Artificial reproductive technologies and international law: the role of human

rights

Ludovica Poli

Assistant Professor of International Law, Department of Law, University of Turin

1 Introduction

The paper aims to explore the role of international human rights law in regulating artificial reproduction technologies (ART). It first considers bioethical divisive issues arising from their application (par 2). The analysis then moves to consider the relevance of international human rights law in the field (par. 3) and its contribution in regulating these new technologies, both from the perspective of the law making process (par 4) and of the law interpretation by international HR Courts (par 5). With special reference to the case-law of the European Court of human rights (ECtHR), the Author argues that, through argumentative escamotages, the Court constantly expresses a human rights oriented position, playing a key role in ruling on new technologies (par 5 1; 5 2).

2 Technology applied to human reproduction:

bioethical dilemmas

Since Louise Brown was born in 1978, being the first baby resulting from in vitro fertilization (IVF), reproductive medicine improved significantly. Its constant advancement has contributed - and still helps - to find solutions both to address medical and ‘social’1 sterility/infertility, and to elude the transmission of genetic diseases to offspring. The ‘unprecedented technical control that medical science now brings to the entire reproductive enterprise’2 has been correctly described as a revolution with no turning back.

Achieved results and possible prospects raise many bioethical dilemmas. As Mori said, these new techniques ‘are likely to not only our way of reproducing but also our view of what human reproduction is (or should be)’3. Different critical profiles might be classified in four categories: ART’s impact on the family as a social structure; ART’s possible detrimental impact on embryos; ART and other related techniques (i.e. pre-implantation diagnosis) as a means to objectify the human being; ART’s contribution to develop a baby-market4 (or a baby-business5, according to a different wording), with transnational features.

First, ART has a strong impact on one of the core structures of each society: the family. The separation of procreation from sexual intercourse - implicit in the medically assisted procreation - has a dual impact. From a philosophical point of view, it represents an affront to creationism6, which still finds support among not only philosophers and theologians, but also policy makers and educators7. As well explained by Evans, ‘opposition to assisted procreation procedures is often voiced in terms of the interference with natural

1 Reference is to the condition of gay, lesbian or single parents.

2 Robertson Children of Choice: Freedom and the New Reproductive Technologies (1996) 5.

3 Mori ‘Is hand of policy to reproduction preferable to artificial intervention?’ in Evans and Pickering (eds) Creating

the Child: The Ethics, Law, and Practice of Assisted Procreation (1996) 99.

4 Goodwin (ed) Baby Markets: Money and the New Politics of Creating Families (2010), considering market in adoption as well.

5 Spar The baby business. How money, science, and politics drive the commerce of conception (2006).

6 ‘The separation of procreation from the one-flesh relationship of husband and wife and the intrusion of multiple parties into the procreative process are contrary to the designs of creation and serve to confuse and exacerbate personal identities and family patterns’: Hollinger, ‘The Right to Have a Child: Are There Ethical Limitations?’ (2003) at: https://cbhd.org/content/right-have-child-are-there-ethical-limitations.

7 Consider, for example, the position held by the creationist-minded members of the Texas Board of Education, who do not believe evolution should be taught in public schools: http://www.huffingtonpost.com/2013/09/11/texas-creationism-textbooks_n_3902946.html.

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processes which they entail. The artificiality is said to undermine the dignity of human life by moving away from traditional givenness of life to its commodification’8.

From a social perspective, it challenges the traditional model of family, enabling ‘the creation of families that otherwise would not exist [and] allow[ing] for a remarkable pluralism of family structures’9, including single parents and same-sex couples. It also has an impact on the increase of the number of twins’ pregnancies and allows the rise of the age of mothers10. It even changed the way in which choices about reproduction are made. These choices are no longer private issues (to be addressed in the intimate settings of a couple), but rather they have become shared decisions, involving a numbers of people, including ‘physicians, the providers of ART services, and the individuals who are involved in the process - from gamete donors to surrogate’11.

Second, ethical concerns may arise with reference to the destiny of the embryos, resulting from the application of artificial reproduction technologies, which are not implanted in the maternal womb. Should they be stored sine die? Could they be ‘adopted’ by sterile individuals or couples?12 Or should they better be destined to scientific research? The key issue at stake is the status of the human embryo13: a central problem in other contemporary debates as well (i.e. abortion and post-coital contraception, embryo and stem cell research, genetic engineering, cloning, etc..). The question might be framed also in other terms: when does human life concretely begin? A clearly unanswered query.

Third, certain possible applications of ART raise the risk of modifying the human being from ‘subject’ of scientific activity, to ‘object’ of manipulation. In this perspective, the main concern regards the possible use of eugenics. While pre-implantation screening was developed to test for major genetic disorders and disabilities, some of its applications raise many doubts. Worries concern sex selection14 or the selection and implantation of a human embryo which will become a brother or sister capable of donating a life-saving tissue to an existing child (so-called ‘saviour sibling’15) and, more in general, the likelihood that parents look for specific traits in the baby (‘designer baby’)16. New techniques substantially transformed traditional eugenics. In past, States involved in projects to improve the human species selected who can procreate, now ART changes both the people ‘responsible’ for and the ‘victims’ of eugenics. As parents are now able to know in advance the genetic makeup of their children and, therefore, to nurture specific aspirations as to the characteristics of their progeny, new technologies convert parents from potential ‘victims’ of the public authority’s impositions, to potential ‘responsible’ of eugenics, at the burden of their offspring17.

8 Evans ‘Creating the child’ in Evans and Pickering supra n 3 at 5.

9 Sabatello ‘Are the kids all right? A child-centred approach to assisted reproductive technologies’ 2013 Neth Q HR 74-75.

10 Ivi 75. 11 Ivi 75.

12 Baiman ‘Cryopreserved Embryos as America’s Prospective Adoptees: Are Couples Truly “Adopting” or Merely Transferring Property Rights?’ 2009 Wm. & Mary J. Women & L. 133; Berger, Blyth, Frith, ‘Relinquishing frozen embryos for conception by infertile couples’ 2010 Families, Systems and Health, 258; Gaines ‘Embryo Adoption: An Opportunity for Life’ 2009 CedarEthics: A Journal of Critical Thinking in Bioethics 7; Dostalik ‘Embryo “Adoption”? The Rhetoric, the Law, and the Legal Consequences’ 2010/11 NY Law School L Rev 867.

13Dunstan, Seller, The Status of the Human Embryo: Perspectives from Moral Tradition, (1988); Steinbock, Life

Before Birth: The Moral and Legal Status of Embryos and Fetuses, 2011; Petersen ‘The Legal Status of the Human

Embryo in vitro: General Human Rights Instruments’ 2005 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 447; Alvarez-Díaz, “The status of the human embryo from a gradualistic perspective” 2007 Gaceta Médica de México, 267.

14 Especially when based not on medical concerns, but on the parents’ preference.

15 Sheldon and Wilkinson ‘Should selecting saviour siblings be banned?’ 2004 J Med Ethics 533–537. 16 Sabatello, supra n 9 at 88.

17 Campiglio ‘Eugenetica e diritto internazionale’ in Boschiero (ed) Ordine internazionale e valori etici: VIII

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Lastly, the improvement of reproductive medicine generated ‘a thriving “baby-market” that involves many actors and much profit. While the existence of an eager clientele has naturally been a trigger to the development of this market, today ART is an industry valued at billions of dollars annually’18. As a matter of fact, the success of these technologies, enabling sub-fertile people to realize their parenting aspirations, generates a demand for medical assisted reproduction, which in turn produces a market for egg and sperm19, as well as for other services, including gestational surrogacy. As clearly stated by Spar and Harrington, medically assisted reproduction ‘is one of the few markets in the world in which products and services are regularly exchanged for money - often very large amounts of money - where buyers and sellers on both sides of the exchange remain loath to acknowledge that they are engaged in a commercial transaction’20. Such a reticence is linked to the disturbing perception that this process involves the commodification of reproduction: namely, the transformation of something that, in view of its nature, should not be considered at sale, into a commodity. Attributing a monetary value to an intimate experience as pregnancy and childbirth subordinates it to market dynamics and ‘may lead to a degradation of things that have been previously considered to be sacred and priceless’21. While the commodification of reproduction per se raises some ethical questions, its diffusion on a global scale amplifies the spectrum of critical issues. A constantly growing number of patients travels to other countries to undertake fertility treatments, not available to them in their own state for a number of reasons. As explained by Allan, ‘the underlying global inequalities between geographic regions and their residents and local inequalities among residents based on gender, class, race, and ethnic hierarchies’22 make such a phenomenon possible. Moreover, these practices have an impact on inequalities, as they make ‘racial, cultural and social disparities more salient’23.

3 The need for an international perspective: reading the bioethical dilemmas through

human rights lens

Due to the delicate issues at stake, it is not surprising that domestic legal systems provide very different regulations on the applicability of ART, in some cases prohibiting or at least seriously circumscribing them, in others leaving a large space to their application. If one considers the international dimensions that these practices usually have, in a context of variable national standards, the relevance of international human rights law is undisputable. It indeed appears that ‘the globalization of biomedical related issues has created the urgent need for coordinated intergovernmental action in order to promote respect for human dignity and human rights in this field, as it is clear that individual countries alone cannot satisfactorily address the new and complex challenges’24.

In such a multifarious scenario, it is thus important to understand what the contribution of international human rights law is. This issue will be addressed considering (a) the law-making process (and its main outcomes), with special reference to the role of soft law; and (b) the law interpretation as the main task of international human rights Courts, with special reference to the ECtHR.

18 Sabatello, supra n 9 at 77.

19 Styhre and Arman Institutionalizing Assisted Reproductive Technologies: The Role of Science, Professionalism, and

Regulatory Control (2016) 15.

20 Spar and Harrington ‘Building a better baby business’ 2009 MJLS 43.

21Voigt and Laing ‘Journey into Parenthood: Commodification of Reproduction as a New Tourism Niche Market’ 2010 J Travel & Tourism Marketing 253.

22 Ikemoto ‘Reproductive Tourism: Equality Concerns in the Global Market for Fertility Services’ 2009 Law & Inequality 277. See also Donchin ‘Reproductive tourism and the quest for global gender justice’ 2010 Bioethics 323-332.

23 Allan ‘Commercial Surrogate and Child: Ethical Issues, Regulatory Approaches, and Suggestions for Change’ Working Paper - May 30, 2014, at: http://ssrn.com/abstract=2431142, p. 3; Rimm ‘Booming baby business: regulating commercial surrogacy in India’ 2008-2009 U Pa J Int’l L 1445.

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Interestingly, these two analyses relate respectively to a specific dimension of the role of international human rights law in regulating ART.

The first dimension concerns the limits to artificial reproduction technologies (as to any other biomedical activity), in view of the need to respect human dignity as an autonomous value and/or to protect the embryo in vitro.

While some scholars refer human dignity as ‘the shaping principle’ of international bioethics25, a major debate concern the status of embryos. However, although the question whether human embryos enjoy a right to life remains unanswered, a substantial agreement exists on the need to guarantee them some kind of protection against improper use of biomedicine or scientific research.

The second dimension deals with the need to balance conflicting interests arising from the (possible) application of ART. We can indeed describe the bioethical contentious issues mentioned in the previous paragraph in terms of competing rights requiring a fair balance.

On the one hand, supporters of ART ‘emphasize the importance of individual freedom, specifically the autonomy of the person and the right to make private choices free from the scrutiny of the State’26, as well as the right to health, including reproductive health. Reproductive rights were first recognized during the Tehran Conference in 1968 - when for the first time it was stated that freedom of choice in family planning is a fundamental right. They received further endorsement in both the Programme of action, adopted in 1994 at the Cairo Conference on Population and Development, and in the Platform for action, adopted in 1994 at Beijing Conference on Women in 1995. Both documents relate reproductive freedom to reproductive and sexual health27 and include prevention and treatment of infertility among health treatments for reproductive purposes28.Pavone considers that these new techniques determined the emersion of a new category of rights including ‘the right to an offspring void of a serious genetic disease, the right to have access to ART and the right to adequate genetic counselling’29.

On the other hand, those who opposed the recourse to ART, usually stress the need to protect the child rather than the intended parents’ aspirations. They affirm the supremacy of the ‘rights of a baby’ over a supposed ‘right to a baby’. Neri describes this debate as the contrast between ‘child-oriented’ and ‘parent-oriented’ approaches to reproductive technologies. The ‘child-oriented’ approach appears to be closer to a traditional vision of the family: it conceives access to ART only as a remedy to couples’ infertility and not as an alternative way of conceiving a child available to everybody30. The ‘parent-oriented’ approach, conversely, is based on the idea that limits to one’s procreative choices are justified only when there are sufficient reasons to believe that these choices will harm other people’s rights31 .

While these are the two main categories of rights involved, additional rights appear to have a place in the debate. More in detail, the involvement of third parties (donors, surrogate mothers, etc.) requires an accurate analysis of their position and the protection of their fundamental rights and freedom.

4 The law making process and the role of soft law

25 Andorno ‘Biomedicine and international human rights law: in search of a global consensus’ 2002 Bulletin of the

World Health Organization 960.

26

Pavone ‘Medically assisted procreation and international human rights law’ 2013 Italian YB Int’l L 156.

27

‘Reproductive health care is defined as the constellation of methods, techniques and services that contribute to reproductive health and well-being through preventing and solving reproductive health problems’: International Conference on Population and Development, Programme of action, Cairo, 5-13 September 1994, par 7.2.

28 Reproductive health includes ‘the right of men and women to have access (…) to methods of their choice for regulation of fertility which are not against the law’, Il Cairo Programme of action, par 7.2; Beijing Platform for Action, par 97.

29 Pavone supra n 26 at 156.

30 Neri ‘Child or parent oriented controls of reproductive technologies’ in Evans and Pickering supra n 3 at 145. 31 Ivi 146.

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At present, no treaty under international law provides a regulation for artificial reproductive technologies. The Permanent Bureau of the Hague Conference on Private International Law is currently exploring the feasibility of drawing up a multilateral instrument on surrogacy32, but outcomes are not expected in the near future. Moreover, the project is considering only specific private international law issues (namely, legal parentage or ‘filiation’ of children born through surrogacy and the regulation of international surrogacy arrangements).

However, a number of international instruments guide States in identifying boundaries to medical science in order to protect dignity of all human beings33. Considered to ground its bases in different philosophies34 and, thus, to be one of the few common elements in a world of moral pluralism, human dignity voices ‘the supreme importance, fundamental value and inviolability of the human person’35. As such, it lies at the foundation of any human right, which properly originates ‘from the inherent dignity of the human person’36. Some of these treaties envisage rules or principles relevant to ART. In particular, Art. 14 of the Oviedo Convention provides that ‘the use of techniques of medically assisted procreation shall not be allowed for the purpose of choosing a future child’s sex, except where serious hereditary sex-related disease is to be avoided’. Moreover, art. 3.2 of the EU Charter of Fundamental Rights - guaranteeing the right to the integrity of the person in the fields of medicine and biology - outlaws eugenic practices, as well as reproductive cloning of human beings and prohibits to make the human body and its parts as such a source of financial gain.

Even if these binding documents represent important achievements in the development of international biolaw, their applicability is not always completely satisfactory. Ashcroft underlines, for example, that ‘most of the countries with major pharmaceutical and life sciences industries have not taken up the Oviedo Convention’37. Moreover, with few exceptions, the Oviedo Convention ‘codifies, abstracts and simplifies provisions which exist in domestic law already’ and may thus be considered ‘redundant’: ‘indeed, it is unlikely that it would have been agreed and open for signature otherwise’38.

Not surprisingly, the adoption of soft law documents is sometimes more successful39: the UNESCO Declarations40, for example, are basically complied with to the same extent of treaties and conventions41. 32 https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy.

33 The main treaty is theConvention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Oviedo 1997). Four additional protocols have been adopted, respectively on the Prohibition of Cloning Human Beings (1998), on Transplantation of Organs and Tissues of Human Origin (2002), on Biomedical Research (2007) and on Genetic Testing for Health Purposes (2008, not yet in force).

34 Spiegelberg ‘Human dignity: a challenge to contemporary philosophy’ in Gotesky, Laszlo (eds.) Human dignity.

This century and the next (1970) 40. 35Andorno supra n 25 at 960.

36

Preamble, International Covenant on Civil and Political Rights, 1966.

37 Ashcroft ‘Could Human Rights Supersede Bioethics?’ 2010 HRLRev 658. 38 Ibidem.

39

Scholars have intensively investigated the meaning of soft law, as well as its relation with hard law. Among others, Weil (‘Towards Relative Normativity in International Law?’ 1983 AJIL 413) and Klabbers (‘The Redundancy of Soft Law’ 1996 NordicJIL 167; ‘The Undesirability of Soft Law’ 1998 NordicJI 381) provided critical reviews of the phenomenon. Other valuable works include: Shaffer and Pollack ‘Hard vs. Soft Law: Alternatives, Complements and Antagonists in International Governance’ 2010 MinnLRev 706 (explaining how hard and soft law as alternatives, complements, but also as antagonists); Chinkin ‘The Challenge of Soft Law: Development and Change in International Law’ 1989 ICLQ 850 (providing an analysis of the pros and cons of soft law with special reference to its application to economic law). See also: Abbott and Snidal ‘Hard and Soft Law in International Governance’ 2000 IntOrg 421; Baxter ‘International Law in “Her Infinite Variety”’ 1980 ICLQ 549; D’Aspremont and Aalberts ‘Which Future for the Scholarly Concept of Soft International Law? Editors’ Introductory Remarks’ 2012 Leiden JIL 309; Shelton

Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (2000).

40 Universal Declaration on the Human Genome and Human Rights, 11 November 1997; International Declaration on Human Genetic Data, 16 October 2005; Universal Declaration on Bioethics and Human Rights, 19 October 2005.

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As well know, ‘the concept of soft law - in spite of its misleading name - represents an important phenomenon in international relations: a complex of norms lacking binding force, but producing significant legal effects nevertheless’42.

According to Abbott and Snidal, ‘soft law offers many of the advantages of hard law, avoids some of the costs of hard law, and has certain independent advantages on its own’43. In particular, ‘[i]t offers more effective ways to deal with uncertainty, especially when it initiates processes that allow actors to learn about the impact of agreements over time’44. The key reason of the success of soft law is clearly its not binding nature: apparently, this feature drives States to approach their standards with no concern for possible infringements and sanctions. In fact, states are cautious (if not reluctant) to bind themselves to constraints of their sovereignty usually posed by treaties, the violation of which may eventually imply their international responsibility.

Soft law produces a gradual but still very effective process of influence and persuasion, which also allows the opportunity to take into considerations all the complexities. Dialogue benefits, thus, from the adoption of soft law instruments. As well stressed by Andorno, ‘soft law presents the great advantage of allowing countries to gradually become familiar with the commonly agreed standards before they are confronted with the adoption of enforceable rules at the national or international level. This gradual procedure leaves more room for discussion and achieving consensus on issues that are especially complex or sensitive, or more exposed to change, like those related to scientific developments’45.

This process can be even more rapid that it seems: soft law does not require the formal ratification by states, a procedure that might take some time. Thus, ‘soft law may provide more immediate evidence of international support and consensus than a treaty whose impact may be heavily diluted by reservations and the need to wait for a ratification and entry into force’46. This is of course of paramount importance in the field of biomedicine, including ART, due to the rapid development of knowledge in the field and the related need to establish clear human rights principles.

Moreover, while posing only political commitments for states in the immediate, soft law plays ‘an important role helping to promote legislative responses to the emerging challenges posed by biomedical advances’47. In fact, declarations and other soft law instruments are frequently conceived to produce a binding effect in the long term, being transfused into a treaty - representing the first step of a treaty-making process48.

Additionally, even before this process is completed, international courts may refer to soft law in interpreting binding treaties: when this happens, soft law directly drives the implementation of law provisions already in force and proves to be a valuable means for purposive interpretation of international law.

When it comes to ART, a number of instruments are worth of mention.

The Report on human artificial procreation, adopted in 1989 by the ad hoc Committee of Experts on Bioethics of the Council of Europe (CoE), set out a number of principles useful as a source of guidance to CoE member States when ART were at a very early stage of development49. More recently, in 2000, the Inter-American Juridical Committee adopted a ‘Draft Legislative Guide on Medical-Assisted Fertility’50 aimed at providing the legislators of the OAS member States with some guidelines for ruling on this issue. On the special condition of the embryo in vitro, along with a number of CoE Parliamentary Assembly’s

42 Thürer ‘Soft Law’ 2009 MPEPIL par. 37.

43 Abbott and Snidal supra n 39 at 423.

44Ibidem.

45 Andorno ‘Human Dignity and Human Rights as a Common Ground for a Global Bioethics’ 2009 J Med Phil 225-226.

46 Andorno ‘The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethics’ a contribution to the workshop ‘Die Umsetzung bioethischer Prinzipien im internationalen Vergleich’ 2007, available at: https://www.unesco.de/wissenschaft/bis-2009/invaluable-role-of-soft-law.html.

47 Ibidem.

48 Soft law may even contribute to the emersion of a customary law (sets of) rule(s) influencing and shaping states’ practice. However, this source of law appears not easily responsive to the constant and very rapid development of ART.

49 Council of Europe, Ad Hoc Committee of Experts on Progress in the Biomedical Sciences, Report on Human Artificial Procreation, 1989.

50 Organization of the American States, Inter-American Juridical Committee, Draft legislative guide on medically-assisted fertility, 2000, CJI/RES. 18 (LVII-O/00).

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recommendations51, theSteering Committee on Bioethics adopted in 2003 a Report addressing issues raised respectively by in vitro fertilization, research on the embryo and preimplantation genetic diagnosis52. The Report outlined that, while the definition of the status of the embryo remains a controversial issue, there is a broad consensus on the need for the protection of the embryo in vitro and encouraged the identification of common approaches to ensure proper conditions for procedures relating the creation and use of embryos in vitro.

5 Interpreting and applying the law: the European Court of human rights’

contribution.

ART, like other biomedical activities, are directly related to the most basic human rights such as the right to life and to physical integrity. Therefore, many issues posed by the application of ART may fall within the scope of general international human rights treaties. The use of these technologies, however, has debatable features requiring a delicate balance of competing interests and rights. The role of human rights Courts, thus, become central to the identification and correct implementation of clear standards in the access to ART. Among other international HR Courts, the ECtHR plays a key role in this field, as it has dealt (and is currently dealing) with a number of cases related to ART, mainly under the perspective of art. 8 of the European Convention of human rights (ECHR), which guarantees the right to a private and family life53. The Court has considered the following issues: the decision to become or not to become a parent through IVF54; the right of individuals to see their decision to become genetic parents respected55; the access to heterologous artificial procreation56; the access to pre-implantation genetic diagnosis (PID)57; and the right to donate embryos to the scientific research58. Additionally, a number of controversial profiles, deriving from the practice of surrogacy, have been brought to the ECtHR’s attention59. It is therefore with reference to the ECtHR’s case law that this analysis on the role of international HR Courts in ruling on new technologies applied to the beginning of life will be carried out.

It is outside the scope of this paper to offer a detailed exam of the ECtHR’s case-law on ART and connected practices60. Rather, the paper will argue that, while the Court commonly applies principles that are solidly founded in its case-law, in many cases related to sensitive issues, this application is not free from

51 Parliamentary Assemblyof the Council of Europe, Recommendation 1046 (1986) on the use of human embryos and

foetuses for diagnostic, therapeutic, scientific, industrial and commercial purposes; Recommendation 1100 (1989) on the use of human embryos and foetuses in scientific research.

52 Steering Committee on Bioethics of the Council of Europe, Report by the Working Party on the Protection of the Human Embryo and Fetus , The Protection of the Human Embryo in vitro, 19 June 2003 CDBI-CO-GT3 (2003) 13.

53 The Interamerican Court on Human Rights adopted a paramount decision in 2012, in the case Artavia Murillo et al., recognizing that Costa Rica’s ban of the reproductive health technology violated the right to personal integrity, the right to liberty, the right to privacy, as well as the right to form a family.

54 ECtHR (GC) Evans v United Kingdom 10 April 2007. 55 ECtHR (GC) Dickson v United Kingdom 4 December 2007. 56 ECtHR (GC) S.H. and others v Austria 3 November 2011. 57 ECtHR Costa e Pavan v Italy 28 August 2012.

58 ECtHR (GC) Parrillo v Italy 27 August 2015.

59 ECtHR Mennesson v. Francia and Labassee c. Francia 26 July 2014; D. and others v Belgium 8 July 2014;

Paradiso e Campanelli v Italy 25 January 2015.

60 For an analysis of the main ECtHR decisions on ART and connected practices: Pavone supra n. 26; Žnidaršič Skubic ‘The Issue of Consent in Bio-Medically Assisted Reproduction Procedures (the Case of “Evans v. the United

Kingdom”’ 2008 Zbornik pravnog Fakulteta u Zagrebu 114; Biondi ‘Access to medical-assisted reproduction and PGD

in Italian law: a deadly blow to an illiberal statute? Commentary to the European Court on human rights’s decision

Costa and Pavan v Italy’ 2013 Med L Rev 474-486; Poli ‘Pre-implantation genetic diagnosis under the European Court

of human rights review: an opening toward a wider acceptance of the technique in Europe?’ 2013 CYIL 141; Poli ‘Maternità surrogata e diritti umani: una pratica controversa che necessita di una regolamentazione internazionale?’ 2015 Biolaw Journal 7.

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inconsistencies or, at least, it is accompanied by other argumentative maneuvers, which let the Court obtain the desired results. In particular, the Court sometime 1) develops dialectical escamotages to identify and balance rights; and 2) drives the consolidation of the European consensus.

5 1 Argumentative escamotages to identify and balance competing rights

Two decisions provide a good example of how the Court elaborates persuasive ploys to reach (or, at least, confirm) a desired result.

In the case Costa and Pavan v. Italy, the applicants claimed a violation of art. 8 ECHR, due to their impossibility to accede to the pre-implantation genetic diagnosis (PID), which was - at that time- banned by the Italian Law no 40/2004, regulating access to artificial reproductive technologies.

As well know, Art. 8 ECHR provides that the right to respect for one’s ‘private and family life’ may be subjected to certain restrictions, as far as these are ‘in accordance with law’ and ‘necessary in a democratic society’ (namely, they assure the protection of health or morals, or the rights and freedoms of others). According to the Court’s case-law, States enjoy a large margin of appreciation61 in deciding what is ‘necessary in a democratic society’, when intricate and delicate issues (like those related to access to ART) are under consideration. Indeed, States are deemed in the best position to find equilibrium between competing interests, sensibilities and beliefs. However, even when the margin of appreciation is wide, the ECtHR, is in any case called to determine whether a fair balance has been struck between the competing interests of the State and those directly affected by its action.

In Costa and Pavan, once the Court had accepted that the prohibition of PID was an interference with the applicants’ private and family life62, prescribed by the law and pursuing legitimate objectives (namely, the protection of morals and of the rights and freedoms of others63), it moved to evaluate whether the prohibition was also ‘necessary in a democratic society’. At this point, the Court did not circumscribe its analysis to the compatibility of the ban with art. 8 ECHR, but rather evaluated it in a broader legal context, covering the Italian regulation of therapeutic abortion64. This assessment induced the Court to determine an unlawful infringement of the right to private and family life, due to the inconsistency of normative provisions affecting aspirant parents, who are immune carriers of a hereditary disease. Specifically, it was noted that the Italian law prohibits the selection and implantation of healthy embryos, but allows therapeutic abortion when the same disorders are found in the fetus, through pre-natal screening65.

The approach adopted by the Court regarding art. 8 ECHR in the case Costa and Pavan is thus strongly innovative. For the first time, the ECtHR has assessed the proportionality of a single provision of law, not just per se, but rather in light of the relevant Italian legislation on the matter. An analysis limited to the legitimacy of the prohibition of PID would have led the Court to confirm the existence of the State’s wide margin of appreciation - which covers, as constantly confirmed by the ECtHR case-law, both the decision to regulate (or not) a particular matter, and the concrete normative choices operated66 - and, therefore, to exclude a violation of art. 8 ECHR. Only a wider examination of the Italian legal system brought the Court to the conclusion that, in the Costa and Pavan case, the legitimate aim (i.e., the protection of public morals and

61 On the margin of appreciation see: Olinga and Picheral ‘La théorie de la marge d’appréciation dans la jurisprudence récente de la Cour européenne des droits de l’homme’ 1995 Rev trim droits de l’homme 567; Hutchinson ‘The Margin of Appreciation Doctrine in the European Court of Human Rights’ 1999 ICLQ 638; Greer The margin of appreciation:

interpretation and discretion under the European Convention on Human Rights (2000); Arai-Takahashi The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (2001); Letsas ‘Two

concept of the margin of appreciation’ 2006 OxfordJLS 705; Christoffersen Fair Balance: Proportionality, Subsidiarity

and Primarity in the European Convention on Human Rights (2009).

62 ECtHR Costa and Pavan supra n 57 par 58. 63 Ivi, par 59.

64 Ivi, par 69. 65 Ivi, par 60 ff.

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of others’ rights and freedoms) could have been pursued with a lesser impact on the rights of the applicants, precisely with the application of PID.

Another interesting case is Paradiso and Campanelli v. Italy, where the Court focused on the removal of a child born through surrogacy and his placement under guardianship, disposed by Italian authorities on the ground that he had no biological relationship with the applicants (the intended parents) and that they had been in an unlawful situation67.

The applicants complained, in the child’s name, the violation of art. 6, 8 and 14 of the European Convention, but the ECtHR ruled that they could not represent the child, because of the absence of any biological link between them and the child, and his current placement under guardianship in Italy.

However, the Court held that there had been a violation of art. 8 ECHR to the detriment of the applicants. In particular, according to the judges, the public-policy considerations underlying Italian authorities’ decisions, could not take precedence over the best interest of the child, in spite of the absence of any biological relationship and the short period during which the applicants had cared for him. Reiterating that the removal of a child from the family setting is an extreme measure that could be justified only in the event of immediate danger to the child, the Court concluded that, in the case, the conditions justifying a removal had not been met. Interestingly enough, then, although the Court excludes the possibility to consider the alleged violations suffered by the child, it precisely recognized the violation against the parents, due the detrimental effect that the Italian authorities’ decision had on the baby’s condition. In a way, the Court appears as protecting the applicants’ position, as a medium to guarantee the child’s one.

These two decisions exemplify some of the argumentative maneuvers adopted by the ECtHR.

In the first case, a change in perspective assures the protection of fundamental rights in the face of important public interests, even when the Court confirms a wide level of discretion to States68. In the second case, the identification of a position deserving special protection (the child’s one) drives the Court to its pronouncement, even when such a position is not directly considered in the case.

5 2 Driving the consolidation of the European consensus

The presence of a general agreement among the Member States of the Council of Europe on certain standards and principles (the so-called ‘European consensus’) is commonly used by the Court to determine the extent of the States’ margin of appreciation in a specific matter. The European consensus ‘carries with it the weight of legal tradition of the entire European system. It also provides a basis for evolving rights to be incorporated into the general provisions of the Convention. Finally, it provides relatively objective guidance to the interpretation of those provisions’69. As a rule, therefore, the lack of consensus on a particular issue in Europe is the basis for the recognition of a wider margin of appreciation by the Court.

67 According to the Italian authorities, they had circumvented the prohibition in Italy on using gestational surrogacy arrangements and the rules on international adoption by contacting a Russian agency in order to become parents and subsequently bringing to Italy a child whom they passed off as their child.

68 Interestingly enough, in Costa and Pavan, the Court deliberately avoided any clear censure of the legal choices operated under the Italian system, as far as access to ART is concerned: Law no 40/2004, in fact, allows exclusively sterile or infertile couples to use artificial fertilization techniques and only when it is impossible to otherwise remove the causes impeding the procreation (Article 4). Following the adoption of the Ministry of Health’s Decree no 31639 of 11 April 2008, access to assisted procreation has been extended to couples in which the male partner suffers from a sexually transmissible disease. In both the cases, the couples must be composed of living heterosexual adults, of a potentially childbearing age, who are married or cohabitees (Article 5, Law 40/2004). While it is somehow bizarre that the Court decided on the ban of PID, without any reference to its premise, i.e. the limited access to assisted reproductive technology, the stance adopted by the judges is perfectly in line with its previous case-law. The (partial) silence of the Court reveals its intention to validate the States’ discretion in ruling on sensitive matters.

69 O’Donnell ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights’ 1982 Human Rights Quarterly 480. See also Benvenisti ‘Margin of appreciation, consensus, and universal standards’ 1998 NYU JInt’l Law & Politics 843.

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In some cases, even if just between the lines, the Court encourages the strengthening of the European consensus and calls upon the States to be responsive to such a development.

In the judgement relating to the case S.H. v. Austria, reversing the decision upheld by the Chamber, the ECtHR Grand Chamber excluded that the Austrian prohibition of using sperm or ova from a donor for in vitro fertilization may consist in the violation of art. 8 and 14 ECHR. The Court deemed that the Austrian government had a wide margin of appreciation, also considering that ‘there is not yet clear common ground amongst the member States’70 as for the heterologous IVF. However, the judges did not miss the chance to reiterate ‘that the Convention has always been interpreted and applied in the light of current circumstances (…). Even if it finds no breach of Article 8 in the present case, the Court considers that this area, in which the law appears to be continuously evolving and which is subject to a particularly dynamic development in science and law, needs to be kept under review by the Contracting States’71.

In other decisions, a closer reading of the reference to the European consensus displays the Court’s intention to drive its consolidation.

Once again, the case Costa and Pavan offers some cues. In its judgement, the Chamber made a comparative analysis of domestic legal systems, to assess whether a European consensus on the PID exists72. However, the ECtHR did not limit the relevance of its assessment to the identification of the scope of the margin of appreciation, but rather it used the European consensus to strengthen its conclusions as to the infringement of art. 8 of the ECHR. As explained, the Court recognized a violation of the applicants’ right to private and family life, referring to the lack of proportionality of the prohibition of PID, under the Italian legal system, in the light of the possible access to therapeutic abortion. Thus, its findings in no way were related to a limited scope of the respondent’s margin of appreciation on the issue. This notwithstanding, before moving to its conclusions, the Court felt the need to recall the mentioned comparative analyses’ results. More precisely, it stated that the ban of PID is ‘une situation spécifique laquelle, d’après les éléments de droit comparé dont la Cour dispose, outre l’Italie, ne concerne que deux des trente-deux Etats ayant fait l’objet d’examen, à savoir l’Autriche et la Suisse. De plus, quant à ce dernier Etat, la Cour note qu’un projet de modification de la loi en vue de remplacer l’interdiction du D.P.I., telle qu’actuellement prévue, par une admission réglementée est actuellement en cours’73.Not only is such remark not strictly required for the conclusions on art. 8 ECHR,

the Court’s interpretation of the comparative data also appears to be erroneous. The documents prepared by the Steering Committee on Bioethics and the Joint Research Centre show that, among the 30 States considered, 20 authorize PID (including three States permitting the screening, even in absence of a detailed regulation), while such a practice is not allowed, not only in those States explicitly banning it, but also in the other nine countries, which have not adopted rules and are not reported as de facto practicing the PID. In other words, it is possible to infer that in these countries the lack of a regulation on PID results in an inability to access such procedures. A similar interpretation of the available data would have led the Court to hold that the European consensus on the issue is not yet consolidated and that, therefore, States have a wide margin of appreciation, regarding how to regulate the access to PID. This of course would have not changed the Court’s finding, but both the reading of the comparative data provided by the Court and the relevance accorded to them, suggest the Strasbourg judges’ support for a legislative solution that allows the pre-implantation genetic diagnosis, in case of serious genetic disorders, even regardless of the need to guarantee internal coherence within national legal systems.

70 ECtHR S.H. and others supra n 56, par 97.

71 Ivi, par 118.

72 According to the surveys completed by the Council of Europe’s Steering Committee on Bioethics and the European Commission’s Joint Research Centre, PID is not permitted in Italy, Austria and Switzerland. It is expressly authorized in 17 countries within the Council of Europe and applied in Turkey, Slovakia and Cyprus, despite the lack of specific internal rules on the matter. (Council of Europe, Steering Committee on Bioethics, ‘The protection of the human embryo in vitro, Report by the Working Party on the Protection of the Human Embryo and Fetus’ (19 June 2003) CDBI-CO-GT3 (2003) 13; Joint Research Centre of the European Commission, ‘Pre-implantation Genetic Diagnosis in Europe’ (December 2007) EUR 22764 EN).

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The analysis demonstrates that the margin of appreciation, the best interest of the child, as well as the European consensus sometimes are functional to corroborate the Court’s position, rather than to identify the boundaries of its discretionary power or to guide its reasoning. Especially when this happens, the Court confirms to play a prominent role in ruling on new technologies, expressing human rights oriented position on divisive topics. Moreover, in doing so, it clearly demonstrates to express a distinct ethical choice, rather than having a neutral voice in regard to the bioethical debate underpinning each case

6 Concluding remarks.

Artificial reproductive technologies, as many other biomedical applications, are experiencing continuous improvements. These practices not only imply controversial moral and ethical issues, but also, in view of their growing international dimension, they also urge a coordinated intergovernmental action to make sure that human rights are correctly identified and protected.

While it is true that, at a global level, it is sometimes simpler to fix minimum standards74, the international law-making process on ART is still at a very early stage and more efforts should be devoted to the adoption of soft law instruments, which prove to be suitable to guide States in regulating these matters.

In the meanwhile, controversial issues will continue to be addressed by individuals to human rights Courts. They will thus play a prominent role in ruling on these new technologies and, in doing so, express ethical stances capable of influencing the moral debate on divisive topics.

74 ‘These, often complex, global issues may find international agreement through a human rights approach and the establishment of common principles more easily than at national level where specific cultural and religious attitudes may come into play’: Gunning ‘Bioethics and Human Rights’ 2008 Med and Law iii.

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