Article on Legal Status of In Vitro Fertilization in Latin America and the ACHR

The forthcoming issue of Suffolk Transnational Law Review will contain the article "The Legal Status of In Vitro Fertilization in Latin America and the American Convention on Human Rights" by Martin Hevia and Casrlos Herrera Vacaflor.

This is the abstract:

In Latin America, Costa Rica is the only country in the region that absolutely bans access to In Vitro Fertilization (IVF). In 2000, the Constitutional Chamber of the Supreme Court of Costa Rica, invoking article 4.1 of the American Convention on Human Rights, the fundamental legal document of the Inter-American system of human rights recognized the embryos’ right to life. The Constitutional Chamber held that given the great possibility that the embryos would be discarded, IVF should be completely prohibited insofar as it violates the right to life.

Recently, in the 2010 report “Gretel Artavia Murillo and others v. Costa Rica,” the Inter-American Commission of Human Rights (IACHR) concluded that completely prohibiting access to IVF in Costa Rica is incompatible with the ACHR. The commission ruled that the Costa Rica Constitutional Chamber’s decision to establish a total ban on access to IVF constitutes an arbitrary interference and is a restriction incompatible with the exercise of the rights of private and family life and the right to form a family — enshrined in articles 11 and 17 of the ACHR. It also held that impeding access to IVF is discriminatory since it constitutes a burden for a specific societal group: infertile women. Because Costa Rica had not complied with the IACHR recommendation to lift the ban on access to IVF, the Commission brought the case before the Inter-American Court of Human Rights, which is now ready to listen to the parties and resolve the controversy.

A propos the Commission’s report and as a prelude to the debate that will take place before the IACtHR, this paper analyzes the legal regimen on the process of IVF. In order to do so, it will critically evaluate the core of the IACHR report, and from this, determine the extent of the right to privacy and the right to life in these Latin American countries. This task is indispensable to observing whether the current legal status of IVF, in Costa Rica and other countries in the region, is consistent with the ACHR.

CoE on Genetic Testing

Two new documents are available on the CoE website related to genetic testing:

 

1. The first one conatins the replies recieved by the CoE during the consultation period on the document on Predictivity, Genetic Testing and Insurance. The purpose of the consultation was to elicit comments and replies namely from bodies representative of the different fields concerned (in particular, patients, consumers, insurers and reinsurers, doctors, geneticists, ombudspersons), at national and international levels, on proposals and questions regarding the use of predictive health-related data, in particular genetic data, in the field of insurance.

2. The other one is a brochure on Genetic Tests for Health Purposes.Genetic testing is a source of considerable advances in human health, and will increasingly form part of standard medical practice. Its use is not without implications for the persons concerned, and for their family members. Results are complex to analyse and often with limited predictive value, so it is important to get appropriate support when a genetic test is envisaged and on subsequent receipt of results. The availability of direct-to-consumer genetic test, online especially, outside any individualised medical supervision, raises particular concerns. Therefore, it is important for everyone to have access to objective general information about the nature of these tests, their application in the health field, and the extent but also the limits of results.

Critical analysis of the Court's case law on anti-Roma violence

The latest issue of Human Rights Law Review the article "Is the European Court of Human Rights’ Case Law on Anti-Roma Violence ‘Beyond Reasonable Doubt’" by Mathias Möschel. the author critsizes the inconsistencies within the case law of the ECtHR in relation with anti-Roma cases.

A part of the article is dedicated to the justification of the Courts decision not to investigate the facts of the case of V.C. v. Slovakia and its subsequent N.B. v. Slovakia with regard to the violation of Article 14 of the ECHR. The author also draws attention to some methods that could be applied by the Court in order to change .

Here is the abstract:

This article critically analyses the European Court of Human Rights’ case law on anti-Roma violence. Its reluctance to recognise Article 14 violations in almost all involved cases stands in stark contrast with the Court’s strong rhetoric against racial discrimination. After demonstrating how the Strasbourg judges maneuvered themselves into this position, the author shows how they could change their jurisprudence. Thus, they would finally stop contributing to presenting and legally constructing Europe as a place where racial discrimination exists only in the rarest cases.

Summary of N.B. v. Slovakia (Hungarian)

In the upcoming issue of Fundamentum, the Hungarian human rights law review, you can find my brief summary of the case of N.B. v. Slovakia (unfortunately the language is Hungarian).

The table of contents can be found here.

Aritcle on the Right to Informed Consent and the relevant case-law of the ECtHR (Hungarian)

Eötvös Loránd University Faculty of Law published the collection of articles based on presentations held on the PhD. conference of the faculty this spring. Amongst them there is my article as well the title of which is The Right to Informed Consent under Article 5 of the Oviedo Convention and the relevant case-law of the European Court of Human Rights. Unfortunately the article is in Hungarian.

In this article I analyzed, firtly, the rules of informed consent within the Convention on Human Rights and Biomedicine with regard to its importance and the elements of consent that are commonly distinguished in the scholarship. Secondly, I drew up the way the right to informed consent can be invoked before the ECtHR. I reiterated that informed consent issues generally appeared before the Court in relation with Articles 3 and 8 of the ECHR. Finally, I analyzed some cases regarding each ECHR right.

ECtHR published a new factsheet on the right to life

The ECtHR published a factsheet on cases in realtion with the right to life. From a bioethical perspective the factsheet contains two interesting topics: the first is the collection of cases related to the question of the beginning of a person's life. In this respect the document reiterates the Court decision in Boso v. Italy (Application no. 50490/99) which found that "granting a foetus the same rights as a person would place unreasonable limitations on the Article 2 rights of persons already born".  The other one is the group of cases concenring the hypothetical right to die.

Contents:

1. Beginning of Life:
- Vo. v. France (Application no. 53924/00)
- Evans v. United Kingdom (Application no. 6339/05)

2. Right to die?:
- Pretty v. United Kingdom (Application no. 2346/02)
- Koch v. Germany (Application no. 497/09)

Research Report: Bioethics and the case-law of the Court

In May 2012 the ECtHR published an updated research report on its case-law in relation with bioethics. The report was prepared by the Redearch Division of the Court and finalised in 2009. However, due to certain developments within the case-law of the Court, the Division updated its earlier working document.

The report follows a sistematic approach, starting from bioethicsal issues raised in recent judgments. This includes reproductive rights, medically assisted procreation, assisted suicide, consent, issues concenring HIV, retention of biometric data. In its second part, the document contains examples of cases in which the Cour expressly referred to the Convention on Human Rights and Biomedicine or the work of CDBI.

Here is the summary:

The term “bioethics ” has been understood for the purposes of this report to encompass the protection of the human being (his/her human rights and in particular human dignity) in the context of the development of biomedical sciences. Specific issues which come under this term and are addressed in the report include reproductive rights (prenatal diagnos is and the right to a legal abortion), medically assisted procreation, assisted suicide, consent to  medical treatment or examinations, ethical issues concerning HIV, retention of biological data by the authorities and the right to know one’s biological identity. These complex issues are increasingly bei ng raised before the European Court of Human Rights, and we can perhaps expect more applications touching subjects such as gene therapy, stem cell research and cloning in the future. The cases cited raise important questions and often highly sensitive issues under Articles 2, 3, 5, 6 and most often Artic le 8 of the European Convention on Human Rights. [...]

References to the Oviedo Convention on Human Rights and Biomedicine of 4 April 1997 (ETS no. 164), or the work of the Council of Europe in  this area, have been found in a number of cases before the European Court of Human Rights.