A questioning for the prohibition of the preimplantation diagnosis (PID) by the European Court of Human Rights (ECHR)?


By a judgment from 28th August 2012, the ECHR condemned Italy for its legislation in matter of PID. The prohibition in principle of this practice by the Italian law was judged contrary to the European Convention for the Protection of Human Rights (ECPHR). But on what basis a supranational authority can replace, in a democracy, the society choices of people?

 

The judgment by the ECHR

 

  • The facts

 

This case concerns an Italian couple who wants a child. Both of them without cystic fibrosis, they have decided to resort to in vitro fertilization, so that the embryo is subject to a PID. However, by principle the Italian legislation prohibits this practice2.

Invoking the violation of their right to respect for privacy and family life (article 8 of the ECHR), the claimants complained about the only way which was opened for them to give birth to a child non affected by cystic fibrosis was to start a pregnancy by normal childbirth and to proceed to a therapeutic abortion each time the foetus revealed to be ill. 

 

  • The prohibition of the PID: a violation of the right to respect for private and family life?

 

Faced with this claim, the ECHR considered that the desire of claimants to access to PID to have a child who has not cystic fibrosis was a “form of expression of their privacy and family life covered by the article 8.”

But the Court does not answer the question to know whether the access to PID is or not a right protected by the Convention.

In contrast, to condemn the Italian state, it proceeded to an analysis of the prohibition of the PID compared to other provisions of the internal Italian right.

 

  • A condemn based on an incoherence

 

Then, according to it, the ECHR based on what is an “incoherence” of the Italian legislation, to justify its decision: since Italy authorizes the resort to MTP, then it does not have any justification to prohibit the PID.

In other words, if Italy prohibited the resort to therapeutic abortion, then the legal prohibition of the PID would not be contrary to the Convention. The control of the ECHR on the State legislation, even when this concerns choices of society with crucial ethical implications, goes very far.

 

The prohibition of the PID: a political choice covered by national legislations.

 

  • The desire to have healthy child is not sufficient to create a right

 

By making fall into the scope of the article 8 of the Convention “the desire” to have a healthy child, the Court considers that the right of claimants for the respect for their privacy and family life has a right to give birth to a healthy child, in other words a right not to transmit their bad genes: a right to eugenics.

If we can understand that the parents want a healthy child, this desire is not sufficient to create a right by the ECHR. Indeed, the purpose of the Convention is not to protect desires, but rights. This way, by this decision, the ECHR chose to convert eugenics into a right.

 

  • The unjustified interference of the ECHR in the political choices of the States

 

But once this right to PID is not included in the Convention, we cannot see how the ECHR, for “incoherence” reasons can impose the existence of such right to Italy, substituting this way to the national legislator imposing it its own ethical arbitrage in matter of society choice.

Indeed, the Italian people itself, with two referendums, pronounced against the abrogation of the law No.40/2004 which prohibits by principle the access to PID. As a result, it is not up to a supranational authority to replace people’s decisions, when these are not contrary to the Convention.

The Italian government decided to appeal against this decision to the Grand Chamber.

 

  • The prohibition of the PID in Germany: a principle in debate

 

If the prohibition of the PID is subject of a debate in Italy, because of the judgment by the ECHR, it is the same in Germany, where on last summer the government filed with the Bundesrat a project aimed at extending the access to PID, currently prohibited by principle in this country.

The defender of disabled people’s rights, Hubert Hüppe, called the Bundesrat to prohibit the adoption of this text, which could open the way to drifts, leading to a selection process of embryos according to arbitration criteria, such as the sex of the child.

At the Parliament, seven MPs, from different political parties, sent a letter to the Minister for Health, Daniel Bahr, criticizing this willing to extend the access to PID.

With respect to the tensions and debates due to the access to PID at national level, on what basis the ECHR will still be able to consider itself to have jurisdiction to impose to the States the decisions in such field? The question of the legitimacy rises…