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European Court of Human Rights; Italy: Ruling on Embryo Screening

(Aug. 31, 2012) On August 25, 2012, the European Court of Human Rights (ECHR) ruled that Italy's ban on embryonic screening violates article 8 of the European Convention on Human Rights. Article 8 is on the right to respect for family and private life. (Keith Herting, Europe Rights Court Condemns Italy Ban on Embryo Screening, PAPER CHASE NEWSBURST (Aug. 29, 2012); Convention for the Protection of Human Rights and Fundamental Freedoms as Amended by Protocols No. 11 and No. 14 (Nov. 4, 1950), Council of Europe website.)

In the ECHR's view, the Italian government had failed to justify its assertion that interference in that right was justified “by the need to protect the health of the mother and child and the dignity and freedom of conscience of the medical profession, and to avoid the risk of eugenic abuses.” (Press Release, ECHR 327 (2012), Ban Preventing Couple of Healthy Carriers of Genetic Disease from Screening Embryos for In Vitro Fertilisation Violated Their Right to Respect for Their Private and Family Life (Aug. 28, 2012) [click on “Hudoc database” hyperlink and scroll down to “Chamber judgment Costa and Pavan v. Italy 28.08.2012].)

Facts of the Case and Italian Law

In the case of Costa and Pavan v. Italy, an Italian couple, Rosetta Costa and Walter Pavan, found out after their first child was born with cystic fibrosis that they were healthy carriers of the disease. When Costa became pregnant again in 2010 and underwent fetal screening, it was found that the unborn child also had cystic fibrosis, whereupon Costa had the pregnancy terminated on medical grounds. In order to have the embryo genetically screened prior to implantation, under the procedure of pre-implantation diagnosis (PID), the couple want to use in vitro fertilization to have another child. (Id.)

However, current Italian law prohibits PID, even though it allows in vitro fertilization in certain situations (for sterile couples or for those in which the man has a sexually transmissible disease). (Id.) Article 1, paragraph 2, of Law No. 40 of February 19, 2004, on Medically Assisted Reproduction prescribes that “[t]he use of medically assisted procreation is allowed if there is no other effective treatment methods to remove the causes of sterility or infertility.” (Legge 19 febbraio 2004, n. 40, “Norme in materia di procreazione medicalmente assistita,” GAZZETTA UFFICIALE n. 45 (Feb. 24, 2004), Parlamento Italiano website; Act No. 40 of February 19, 2004, Rules on Medically Assisted Procreation, OFFICIAL GAZETTE, No. 45 (Feb. 24, 2004), European Institute of Bioethics website.)

In addition, article 4, paragraph 1, states that the use of assisted reproduction techniques is permitted only when it is otherwise impossible to remove impediments to procreation, and nonetheless is confined to cases of sterility or unexplained infertility documented by a medical act and to cases of sterility or infertility proven and certified by a medical act. (Id.)

Applicants Costa and Pavan lodged a complaint with the ECHR on September 20, 2010, arguing, based on article 8 of the Convention, that their only recourse in order to give birth to a baby free of cystic fibrosis “was to start a pregnancy by natural means and medically terminate it every time the foetus tested positive for the disease.” Relying on the Convention's article 14 prohibiting discrimination, moreover, “they claimed that they were victims of discrimination compared with sterile couples or those where the man had a sexually transmissible disease.” (Press Release, supra.)

Relevant Italian Court Judgments and the ECHR Ruling

A court in the Italian city of Salerno had for the first time, in January 2010, authorized the use of PID by a non-sterile couple who were healthy carriers of muscular atrophy. However, the ECHR press release on the Costa and Pavan case ruling decribes the earlier Italian judgment as a “one-off decision.” (Id.)

Nevertheless, as the ECHR judgment points out, the Salerno court judge took note of new elements introduced in the law by the Italian Ministry of Health Decree No. 31639 of April 11, 2008, namely, that examinations of the state of health of embryos created in vitro were no longer solely for the purpose of observation and that access to assisted procreation was authorized for couples in which the man was a carrier of sexually transmissible disease. (Case of Costa and Pavan v. Italy, Application No. 54270/10, Decision (Aug. 28, 2012) [in French] [click on hyperlink to the text of the ECHR chamber judgment]; Ministero Della Salute, Decreto 11 aprile 2008, Linee guida in materia di procreazione medicalmente assistita[Guidelines on Medically Assisted Procreation], GAZZETTA UFFICIALE, No. 101 (Apr. 30, 2008) [updates and replaces the guidelines set forth in the Ministerial Decree No. 191 of July 21, 2004, published in the Official Gazette of Aug. 16, 2004].)

The Salerno judge further held that DPI could not but be considered one of the techniques of prenatal monitoring aimed at knowing the state of health of the embryo. The judge also “considered it unreasonable not to guarantee the mother the right to know the state of health of the embryo by means of DPI, when her right to abort a sick foetus is recognized.” (Case of Costa and Pavan v. Italy, supra.)

The ECHR Ruling

In finding in favor of the applicants in regard to their argument based on article 8 of the Convention, the ECHR, among other points,

  • considered that the applicants' wish to use medically assisted procreation and PID “in order to have a baby that did not suffer from cystic fibrosis was a form of expression of their private and family life that fell within the scope of Article 8,” and the law's preventing them from following that course “amounted to an interference with their right to respect for their private and family life according to law [citing to Law No. 40/2004, § 4, ¶ 1, and Ministry of Health Decree No. 31639] and the legitimate aims of protecting the morals and the rights and freedoms of others.” (Press Release, supra.) The Court pointed out the inconsistency in Italian law, “prohibiting the implantation of only those embryos which were healthy, but authorising the abortion of foetuses which showed symptoms of the disease,” leaving the applicants with only one choice: to start a pregnancy by natural means and to abort the fetus if prenatal texts indicated it had cystic fibrosis, a course of action that “brought anxiety and suffering.” (Id.);
  • stressed the difference between Costa and Pavan v. Italy, which concerns PID and homologous insemination, and S.H. v. Austria, which concerned access to donor insemination (id.); and
  • noted that, among the legislative choices in regard to PID made in 32 Member States of the Council of Europe, only Italy, Austria, and Switzerland prohibited the procedure, and Switzerland was currently reviewing the matter. The Court pointed out that DPI is authorized in Belgium, Denmark, the Czech Republic, Finland, France, Georgia, Germany, Greece, the Netherlands, Norway, Portugal, the Russian Federation, Serbia, Slovenia, Spain, Sweden, and the United Kingdom. It is not subject to any specific regulation, moreover, in Bulgaria, Cyprus, Estonia, Ireland, Latvia, Luxembourg, Malta, Poland, Romania, Slovakia, Turkey, and Ukraine. Cyprus, Turkey, and Slovakia permit access to DPI in practice. (Case of Costa and Pavan v. Italy, Application No. 54270/10, Decision, supra.)

The ECHR rejected as “manifestly unfounded” the part of the application based on article 14 of the Convention, noting that, “where access to PID was concerned, couples in which the man was infected with a sexually transmissible disease were not treated differently to the applicants, as the prohibition applied to all categories of people.” (Press Release, supra.)

Based on article 41 of the Convention on “just satisfaction,” the ECHR ruled that Italy pay the applicants €15,000 (about US$18,824) in non-pecuniary damages and €2,500 (about US$3,137) for costs and expenses. (Id.)

The decision is not necessarily final, however. Any party may request, within three months after delivery of the verdict, that the case be referred to the ECHR's Grand Chamber, according to articles 43 and 44 of the Convention. (Id.)