The European Court of Human Rights (ECtHR) delivered its judgment in the bioethics case of Costa and Pavan v. Italy, holding the State responsible for violating Article 8 of the European Covention on Human Rights (ECHR) by prohibiting pre-natal diagnosis of genetic diseases. The ECtHR found in its August 10, 2012, decision that the Italian Law on Human Assisted Reproduction violated the right to privacy by creating inconsistent and disproportionate interference in the applicants’ lives by denying them access to embryo screening but authorising medically assisted termination of pregnancy when the fetus showed symptoms of the same disease.
With the help of in vitro fertilization, in which the egg is fertilized outside the woman’s body, and genetic screening, the applicants, both carriers of cystic fibrosis, wanted to avoid transmitting the disease to their offspring. Because the Italian law prohibits pre-implantation diagnosis, their only option was to conceive and medically terminate it if the fetus tested positive for the disease. The couple argued that not being able to access genetic screening to select an embryo unaffected by the disease was a violation of Articles 8 and 14 of the ECHR.
Article 8 of the ECHR offers general protection of a person’s private and family life, home, and correspondence against arbitrary interference by the State. Section 2 of Article 8 specifies that public authority cannot interfere with this right unless it “is in accordance with the law and is necessary . . . for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Italian government did not dispute that the law fell within the scope of Article 8; however, it argued that the ban legitimately intervened to protect the health of mother and child, the doctor’s conscience, and the public interest to prevent eugenic selection.
In its ruling against Italy, the Court highlighted “the incoherence of the Italian legislative system that only bans the implantation of healthy embryos while allowing the abortion of fetuses with genetic conditions.” By preventing them from proceeding in this manner, the Court found the law interfered with the couple’s right to respect for their private and family life. The Court accordingly considered that the interference with the applicants’ right to respect for their private and family life was disproportionate and breached of Article 8 of the ECHR. The ruling is consistent with a previous decision by the Court in S.H. v. Austria upholding a law prohibiting in vitro fertilization, on the grounds that there was no European consensus to consider it a protected human right, but the decision allowed for an exception, as was found in the Costa and Pavan case, where the public interests do not outweigh the private ones. Also like in the S.H. case, the Court in Costa and Pavan declined to enter into bioethical issues and rule that prohibition of access to pre-implantation genetic diagnosis is incompatible with the ECHR and instead restated the importance of proportionality, here related to the prohibition of pre-implantation genetic diagnosis with regard to the authorization of therapeutic abortion. The Court also declined to recognize a violation of Article 14, the prohibition on discrimination, because the law applied to all and would not inform of the results of a test in cases where man tested positive for a sexually transmitted disease.
The Court found in 2007 that the right of a couple to make use of in vitro fertization to conceive a child can be protected by Article 8 as an expression of private and family life. The case concerned two Austrian couples who wanted to conceive a child through in vitro fertilization but where denied access by Austrian Law. Costa and Pavan v. Italy broadened the scope of private and family life provided protection under Article 8 by including the desire to have a child born healthy and without genetically transmissible diseases. By identifying the parents’ wish with their right to privacy, the court projected the concept of Article 8 as a right of individual will in social order. Thus, the desire to have a child free from disease constitutes an aspect of the right to privacy granted by Article 8. The Court held the notion of “private life” to be abroad concept inclusive of the right to respect for one’s decision to have or not to have a child. Furthermore, the Court observed that the terms “child” and “embryo” must not be confused, opposing the government’s argument that the ban legitimately intervened to protect the health of the child. Accordingly, to avoid any deviation in the field of eugenics and to protect the freedom of conscience of medical personnel, the term “child” would not apply.
The majority of European countries allow some form of in vitro fertilization to avoid the inheritance of genetic diseases. Twelve European countries have yet to establish laws regulating in vitro fertilization, although some, such as Poland, are currently considering legislation. The Court’s decision in this case sets binding precedent for all Council of Europe members, obligating Poland to consider the Court’s decision when developing its policy. Given the developments in the field of artificial procreation, access to pre-implantation genetic screening gives rise to many ethical questions, and given the human rights implications, the legislative decisions will fall under the supervision of the ECtHR—which has thus far shown a focus on considerations of the rights of individuals but not to make broader, bioethical decisions. The Court’s ruling comes at a time when pre-natal diagnosis and in vitro fertilization are just two of many possibilities for altering human reproduction. Although the Court has taken a stand on the relevance of reproductive medicine to the protection of private and family life, it remains unclear how in vitro fertilization can or should be protected by the European Human Rights System.