In the case Costa and Pavan v. Italy (Application no. 54270/10) the ECtHR found the violation of Article 8 of the ECHR in relation with an Italian couple who were healthy carriers of cystic fibrosis and who wanted, with the help of
medically-assisted procreation and genetic screening, to avoid
transmitting their disease to their offspring. The Court concluded that the interference caused by inconsistency in Italian law that denied the applicants access to embryo screening but authorised medically-assisted termination of pregnancy if the foetus showed symptoms of the same disease, was disproportionate with the applicants’ right to respect for their private and family life.
The applicants were living in Rome. After the birth of their daughter, in 2006, the applicants learned that they were healthy carriers of cystic fibrosis. The child had been infected by this disease. In February 2010, the applicants decided to terminate another pregnancy following a prenatal diagnosis which indicated that that the foetus was affected by their disease. The applicants wanted access to techniques of medically-assisted procreation and preimplantation genetic diagnosis before the woman begins a new pregnancy. However, due to the relevant Italian law, techniques of medically-assisted procreation were only available for sterile or infertile couples. Preimplantation genetic diagnosis was prohibited. In 2008 a ministerial decree granted access to medically-assisted procreation for couples where the man is affected by sexually transmitted diseases, such as HIV or hepatitis B and C, in order to enable them to procreate children without the risk of transmitting their disease to the woman and / or foetus. This is done through "sperm washing" before the creation of the embryo in vitro. The applicants complained that not being able to access the preimplantation genetic screening to select an embryo that is not affected by their cinstituted the violation of Articles 8 and 14 of the Convention.
Violation of Article 8 of the ECHR
a) The Court, in the first intance, examined whether the complaint was ratione materiae compatible with Article 8 of the Convention.
The Court noted, contrary to the argument of the Government which indicated that the applicants complained of a violation of a "right to have a healthy child", that the right claimed by the couple was limited to the ability to access to techniques of artificial procreation and preimplantation genetic screening to have a child who is not affected by cystic fibrosis, a genetic disease of which they were healthy carriers.
In this respect, the Court reiterated that the notion of "private life" within the meaning of Article 8 is a broad concept that encompasses, among others, the right to establish and develop relationships with other human beings, the right to "personal development", or the right to self-determination. Sexual identification, orientation and life are also part of the protected private sphere, as well as the right to respect one’s decision to become a parent. The Court also recognized the right to respect one’s decision to become or not to become a genetic parent, and concluded that Article 8 covers the access to technology of heterologous artificial procreation for in vitro fertilization. Court therefore came to the conclusion that the applicants wish to procreate a child who is not a carrier of their disease, via the use of medically-assisted procreation and preimplantation genetic screening, is a choice related to their private and family life protected by Article 8.
b) The ECtHR secondly examined whether there had been an interference with the applicants’ rights under Article 8 was prescribed by law and pursued a legitimate aim under that article.
In this relation the Court noted that Italian law grants access to medically-assisted procreation only for sterile or infertile couples or couples where the man is carrying sexually transmitted diseases. The applicants do not comply with these conditions. Access to preimplantation genetic screening is prohibited to everyone. Therefore there had been an interference with the applicants' right to respect for their private and family life. In the Court’s opinion, this is certainly an interference "prescribed by law" and may pursue the legitimate aim of protecting morals and the rights and freedoms of others.
c) The Court thirdly examined whether the interference with the applicants’ rights under Article 8 was neccessary in a democratic society.
The Court noted at the outset that the applicants' complaint relates to the lack of proportionality of the relevant Italian law, not to its compliance with Article 8. However, the Government justified the interference by relying on the need to protect the health of "child" and the woman, the dignity and freedom of conscience of medical professionals and the importance of avoiding the risk of eugenics. In this respect, the Court, while stressing that the concept of "child" can not be equated to that of the "embryo", does not see how the protection of the interests of the child is consistent with the possibility for the applicants to access to therapeutic abortion which entails both the foetus, which is obviously more developed than an embryo, and the parents, in particular the woman. The Government also failed to explain how the risk of eugenics and freedom of conscience of medical professionals would be rejected in the case of a lawfully executed preimplantation genetic screening.
The ECtHR found that the Italian legal system in this respect is clearly inconsistent. On the one hand, it prevents the implantation if embryos not affected by the disease of which the applicants are healthy carriers, on the other hand, it allows them to abort a foetus affected by the same disease. The consequences of such a system in relation with the applicants’ right to respect for private and family life of are obvious: the only possibility to protect the applicants’ right to give birth to a healthy child is that they have a pregnancy via natural means and initiate a therapeutic abortion when the prenatal genetic screening shoes that that the foetus is infected by their disease.
In this context, the Court could not ignore: firstly, the amount of anxiety on behalf of the applicants caused by the prospect of motherhood with a child affected by the disease in question when the couple is unable to perform preimplantation genetic screening; secondly, the suffering deriving from the painful choice to have, if necessary, a therapeutic abortion.
The Court further noted that the Grand Chamber in an earlier judgment had found that given the developments in the field of artificial procreation, the margin of appreciation of the state could not be restricted decisively. However, while the issue of access to preimplantaion genetic screening gives rise to sensitive moral and ethical questions, the choice made by the legislature in the matter falls under the supervision of the Court.
The Court observed that, in the resent case, it had the task of verifying the proportionality of the Italian law in the light of the way that therapeutic abortion is accessible to the applicants. Given the inconsistency of the Italian legal system, the Court considered that the interference with the applicants' right to respect for their private and family life was disproportionate and thus there had been a violation of Article 8 of the Convention.
No violation of Article 14 of the ECHR
The Court recalled that, under Article 14, discrimination arises from the fact of treating persons differently in similar situations, without an objective and reasonable justification. The ECtHR therefore found in relation with access to preimplantation genetic screening that couples where the man was affected by a sexually transmitted viral disease were not treated differently since the prohibition of access to screening affects all persons. Thus this part of the application is manifestly ill-founded and must be rejected pursuant.
Special references:
Article 12 of the Convention on Human Rights and Biomedicine
Background document on preimplantation and prenatal genetic testing of the Steering Committee of Bioethics (CDBI/INF (2010) 6)
Violation of Article 8 of the ECHR
a) The Court, in the first intance, examined whether the complaint was ratione materiae compatible with Article 8 of the Convention.
The Court noted, contrary to the argument of the Government which indicated that the applicants complained of a violation of a "right to have a healthy child", that the right claimed by the couple was limited to the ability to access to techniques of artificial procreation and preimplantation genetic screening to have a child who is not affected by cystic fibrosis, a genetic disease of which they were healthy carriers.
In this respect, the Court reiterated that the notion of "private life" within the meaning of Article 8 is a broad concept that encompasses, among others, the right to establish and develop relationships with other human beings, the right to "personal development", or the right to self-determination. Sexual identification, orientation and life are also part of the protected private sphere, as well as the right to respect one’s decision to become a parent. The Court also recognized the right to respect one’s decision to become or not to become a genetic parent, and concluded that Article 8 covers the access to technology of heterologous artificial procreation for in vitro fertilization. Court therefore came to the conclusion that the applicants wish to procreate a child who is not a carrier of their disease, via the use of medically-assisted procreation and preimplantation genetic screening, is a choice related to their private and family life protected by Article 8.
b) The ECtHR secondly examined whether there had been an interference with the applicants’ rights under Article 8 was prescribed by law and pursued a legitimate aim under that article.
In this relation the Court noted that Italian law grants access to medically-assisted procreation only for sterile or infertile couples or couples where the man is carrying sexually transmitted diseases. The applicants do not comply with these conditions. Access to preimplantation genetic screening is prohibited to everyone. Therefore there had been an interference with the applicants' right to respect for their private and family life. In the Court’s opinion, this is certainly an interference "prescribed by law" and may pursue the legitimate aim of protecting morals and the rights and freedoms of others.
c) The Court thirdly examined whether the interference with the applicants’ rights under Article 8 was neccessary in a democratic society.
The Court noted at the outset that the applicants' complaint relates to the lack of proportionality of the relevant Italian law, not to its compliance with Article 8. However, the Government justified the interference by relying on the need to protect the health of "child" and the woman, the dignity and freedom of conscience of medical professionals and the importance of avoiding the risk of eugenics. In this respect, the Court, while stressing that the concept of "child" can not be equated to that of the "embryo", does not see how the protection of the interests of the child is consistent with the possibility for the applicants to access to therapeutic abortion which entails both the foetus, which is obviously more developed than an embryo, and the parents, in particular the woman. The Government also failed to explain how the risk of eugenics and freedom of conscience of medical professionals would be rejected in the case of a lawfully executed preimplantation genetic screening.
The ECtHR found that the Italian legal system in this respect is clearly inconsistent. On the one hand, it prevents the implantation if embryos not affected by the disease of which the applicants are healthy carriers, on the other hand, it allows them to abort a foetus affected by the same disease. The consequences of such a system in relation with the applicants’ right to respect for private and family life of are obvious: the only possibility to protect the applicants’ right to give birth to a healthy child is that they have a pregnancy via natural means and initiate a therapeutic abortion when the prenatal genetic screening shoes that that the foetus is infected by their disease.
In this context, the Court could not ignore: firstly, the amount of anxiety on behalf of the applicants caused by the prospect of motherhood with a child affected by the disease in question when the couple is unable to perform preimplantation genetic screening; secondly, the suffering deriving from the painful choice to have, if necessary, a therapeutic abortion.
The Court further noted that the Grand Chamber in an earlier judgment had found that given the developments in the field of artificial procreation, the margin of appreciation of the state could not be restricted decisively. However, while the issue of access to preimplantaion genetic screening gives rise to sensitive moral and ethical questions, the choice made by the legislature in the matter falls under the supervision of the Court.
The Court observed that, in the resent case, it had the task of verifying the proportionality of the Italian law in the light of the way that therapeutic abortion is accessible to the applicants. Given the inconsistency of the Italian legal system, the Court considered that the interference with the applicants' right to respect for their private and family life was disproportionate and thus there had been a violation of Article 8 of the Convention.
No violation of Article 14 of the ECHR
The Court recalled that, under Article 14, discrimination arises from the fact of treating persons differently in similar situations, without an objective and reasonable justification. The ECtHR therefore found in relation with access to preimplantation genetic screening that couples where the man was affected by a sexually transmitted viral disease were not treated differently since the prohibition of access to screening affects all persons. Thus this part of the application is manifestly ill-founded and must be rejected pursuant.
Special references:
Article 12 of the Convention on Human Rights and Biomedicine
Background document on preimplantation and prenatal genetic testing of the Steering Committee of Bioethics (CDBI/INF (2010) 6)
