Bio-ethics under Human Rights Scrutiny: Toward a Right to Pre-implantation Genetic Testing under the ECHR?

This guest post was written by Adriana Di Stefano. Adriana is a tenured researcher and lecturer in international law at the Faculty of Law of the University of Catania. Her areas of expertise include international humanitarian law, human rights law and EU Law.

On August 28th, 2012 the Second Section of the European Court of Human Rights delivered the long-awaited judgment in the case of Costa and Pavan v. Italy (application no. 54270/10, lodged with the European Court on 20 September 2010). The questions raised in Strasbourg originated from the application of an Italian couple – Mrs Rosetta Costa and Mr Walter Pavan – who, being healthy carriers of cystic fibrosis, desired to resort to medically-assisted procreation and genetic screening in order to avoid the risk of transmitting the disease to their descendants. Relying on Articles 8 and 14 of the European Convention on Human Rights, they complained that the Italian Law (no. 40 of 19 February 2004, “Norme in materia di procreazione medicalmente assistita”), banning couples of healthy carriers of genetic disease from in vitro fertilisation and embryos pre-implantation screening, violated their right to respect for private and family life and the prohibition of discrimination as enshrined in the Convention.

The assigned Section, chaired by Judge Tulkens, held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, dismissing, as manifestly ill-founded, the claim under Art. 14. In brief, the international judges emphasized the inconsistency in Italian law denying the couple access to embryo screening, while authorizing medically-assisted termination of pregnancy if the foetus had showed symptoms of the genetic disease. The Court concluded that the interference with the applicants’ right to respect for their private and family life, even if “prescribed by law” and in pursuit of a “legitimate aim” under Article 8 § 2, was disproportionate and thus exceeded the “necessary in a democratic society” test.

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