ECJL comments on Costa and Pavan v. Italy

Grégor Puppinck, director of the European Centre for Law and Justie (hereafter referred to as ECJL) published his critics in reltaion with the judgment of the Court in the case of Costa and Pavan v. Italy (Application no. 54270/10).[1]

Puppinck's argues that in its judgment the Court formulated a "right to eugenics". On the other hand it did not assert that the prohibition of preimoplantation genetic screening is in itself not contrary to the Convention, but rather assessed the proportionality of the Italian legislation regarding other elements of the Italian legal system. Finally, according to Puppinck, the ECtHR only exmained the case in the light of the results of the contested legislation and did not take into account the "principles", such as human dignity and the protection of the embryo, underlying the law.

I would like to comment on the above.

1) Whether the so-called right to eugenics has been formulated, we must assess the current European legal background, in particular the Fundamental Charter of the EU and the Convention on Human Rights and Biomedicine.

Article 3 (2b) of the Charter of Fundamental Rights proclaims that in the fields of medicine and biology, the prohibition of eugenic practices, in particular those aiming at the selection of personsthe must be respected. According to the commentary the prospect of eugenics, originally aiming that "society must foster the breeding of those who possessed favourable traits and to discourage the breeding of those who did not", faded after WWII and the crimes committed by the Third Reich, however, it has been raised again in recent years, in particular in relation to pre-implantation genetic diagnosis. Nevertheless,

the reference to eugenic practices, in particular those aiming at the selection of persons, relates [among others] to more serious situations in which selection programmes are organised and implemented, involving campaigns for sterilisation, forced pregnancy, compulsory ethnic marriage among others!

Practises of eugenics constitute grave violations of human rights, such as the prohibition of inhuman or degrading treatment, and crimes against humanity as well. However this should not lead to the conclusion that only such serious eugenic practices are covered by the explicit prohibition of eugenic practices. In this repsect a question arises: Does the possibility of genetic tests carried out on embryos of foetuses for the purpose to identify if the offspring carries a genetic disease constitutes a practise contrary to Article 3 (2b) of the Charter? Due to the lack of further references or provision within the Charter, we shall examine the Convention on Human Rights and Biomedicine.

The commentary to the Charter also mentions that the Convention on Human Rights and Biomedicine (note that is has not been ratified by Italy) does not explicitly contain any special provision related to the prohibition of eugenics. However Article 12 of the CHRB states that

[t]ests which are predictive of genetic diseases or which serve either to identify the subject as a carrier of a gene responsible for a disease or to detect a genetic predisposition or susceptibility to a disease may be performed only for health purposes or for scientific research linked to health purposes, and subject to appropriate genetic counselling.

The Explanatory Report of the CHRB states in this regard that through the use of genetic testing it is possible to identify with great precision whether a person carries specific genes for major single gene disorders or not. This document for example mentions as a targeted disease  cystic fibrosis. On the other hand, due to concerns related to the use of genetic testing for employment or insurrance purposes, the CRHB strictly limits the applicability of these tests to health purposes for the individual.  However the Explanatory Report also contains the following:

Article 12 as such does not imply any limitation of the right to carry out diagnostic interventions at the embryonic stage to find out whether an embryo carries hereditary traits that will lead to serious diseases in the future child.

It is therefore possbile to provide someone the possibility of preimplantation genetic test with due regard to other provisions of the CHRB and, of course, the ECHR. Contrary to Puppinck's arguments, we cannot conclude that a right to eugenics has been formulated in the judgment since the possibility of preimplantation genetic screening can be legal and can comply with human rights protection guarantees.[2]

2) To determine whether the Court did not take into account the principles underlying the Italian law, such the protection of the embryo, we shall rely on the relevant part of the judgment where the ECtHR stressed that the concept of "child", mentioned by the Government as the basis for the necessity for the intervention posed by the legislation, can not be equated to that of "embryo". It further expressed its doubts on how

the protection of the interests [of the child] is consistent with the possibility for the applicants to conduct a therapeutic abortion when the foetus is sick, especially given that this entails both the foetus, whose development is obviously more advanced than an embryo's, the parents, particularly the woman

It is clear from the Court's reasoning that it applied a differentiated approach concerning the status of the unborn.A child is entilted to full legal protection, the foetus and the embryo may, depending on the decision of the states within their margin of apprection, enjoy a lower lever, but due to Explanatory Report of the CHRB it shall be entilted to certain guarantess.[3] In this respect, the Court noted that due to inconsistencies in the Italian legal system, the foetus is less protected than the embryo. This cannot be construed as disregarding the protection of the embryo, rather the Court pointed out a serious differenciation which lacks objective grounds.

[1] The ECLJ intervened as a third party in the procedure before the court and submitted an amicus curiae as well.
[2] It shall be noted, however, that Article 2 (2a) of the Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Genetic Testing for Health Purposes (which has not yet came into force) excludes from its scope genetic tests on the human embryo and foetus.
[3] Paragraph 19 states that "it was acknowledged that it was a generally accepted principle that human dignity and the identity of the human being had to be respected as soon as life began".