ECLJ comments on the ECHR case M.P. and others v. Romania

On the 15th of April 2014, the Third Section of the ECHR declared unanimously inadmissible the case M.P. and others v. Romania (application n° 39974/10).

The application concerns three applicants, the parents and their son, conceived on the demand of his parents by artificial insemination and born without tibia. They considered that their son’s right to life was infringed by his birth as a disabled child as a result of medical negligence (Articles 2 and 8 of the Convention). They also considered that the birth of their disabled child had infringed their right to the protection of their private and family life (Article 8 of the Convention). Therefore, they claimed that they had the right to receive compensation for a “wrongful life” and a “wrongful birth”, as the birth of their child was due to the negligence of the doctors that did not discovered the absence of tibia of the child at the various ultrasound scans.

The ECLJ, together with two Romanian NGOs, “The Alliance of families from Romania” and “Pro-vita Bucharest”, were allowed by the Court to intervene as third parties in the procedure and to submit common written observations on the admissibility and merits of the case.

In their observations, as concerns the “wrongful life” claim of the child, they recalled that Article 2 of the Convention (right to life) does not guarantee a right not to live or a right not to be born, but everyone’s right to life, as the human life has an intrinsic value, irrespective of one’s state of health, race, sex or any other status. Therefore, the son of the applicants could not have complained of a “wrongful life” under the Convention. Moreover, under the Romanian law, starting the 14th week, the unborn child’s life is protected under the Convention.

As regards the “wrongful birth” claim of the parents, they draw the attention of the Court that Article 8 of the Convention (right to respect for private and family life) cannot guarantee to the parents the right not to give birth to a handicapped child or the right to abortion, in so far as the parents of the child complaint of the impossibility to abort the child due to the negligence of the doctor to interpret correctly the ultrasound scans. Otherwise, it will be against the very essence of the human rights, which is to protect the human being, especially the most vulnerable one such as the unborn handicapped child.

Judging the claim of “wrongful life” of the child born without tibia, the Third Section decided that it is manifestly ill-founded.  To arrive to this conclusion, the Court firstly recalled that the “right not to be born (…) cannot be derived from Article 2 of the Convention” (§ 40) and that “Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life” (…). However, the Court examined the complaint under article 8 of the Convention, considering that “it is under Article 8 that notions of the quality of life take on significance” (40 in fine). Tackling the merits of the case, the Court appreciated that the judgments of the internal courts, that found that the son of the applicants was not a victim of a “wrongful life”, were amply reasoned and non-arbitrary: “ In holding that the child was not a victim of the medical negligence complained of, the court considered that no protection was to be offered to an alleged right of the child not to be born, especially since the child’s malformation was not of a nature to substantially affect the quality of his life” (§ 44). Furthermore, the Court considered that the internal courts decisions were reasonably proportionate, as they balanced the various interests involved. Among those rights, they included the right to life of the unborn child: “Thus, and in view of the importance of the right to life, it could not be considered that it would have been better for the child not to have been born, having regard also to the fact that the malformation in question was not capable of substantially affecting the quality of the child’s life. It transpired from the file that the malformation could be corrected in the future by surgery” (§ 24).

Moreover, the Third Section pointed out that due to the lack of consensus in Europe on this issue and to the moral and ethical considerations involved, the member states enjoy a wide margin of appreciation on the matter, Romania’s restrictive approach in this field being in conformity with the Convention: “having regard to the moral and ethical considerations involved in this area and to the wide margin of appreciation allowed to States in such sensitive matters where, in addition, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, the Court finds that the restrictive approach taken by the domestic court must be considered as falling within the State’s margin of appreciation” (§ 45).

As to the “wrongfull bith” claim of the parents of the child, the Court applied the controversial Costa and Pavan v. Italy case-law, considering that “Article 8 is applicable to the facts of the present case, in so far as it refers to the parents’ desire to conceive a child unaffected by a genetic disease, this choice being a form of expression of their private and family life” (§ 50). In other words, the Court recognized to the parents, under the Convention, a right to have a healthy child.

Looking to the merits of this complaint, the Court noted that the national authorities acknowledged the alleged violation and afforded them redress, concluding that the parents are no longer victims in the sense of the Convention: “the reasoning of the Court of Appeal refers to a breach of the applicants’ rights to make an informed choice on keeping the child or not, caused by the medical negligence imputed to doctor E.S. As a consequence of this finding, the domestic court awarded them RON 20,000 in respect of non-pecuniary damage. Concerning the claims related to the pecuniary damage incurred by the applicants, the domestic court found that those claims were not substantiated by any relevant evidence. Moreover, according to the applicable legislation, the state’s social security system provided the applicants with assistance in taking care of their child” (§ 52). Furthermore, the Court appreciated that adopting this decision Romania did not overstepped its margin of appreciation: “In the present case, the Court finds that it falls within the State’s margin of appreciation to interpret the relevant domestic legislation and to consequently establish the amount of money to be awarded in compensation in such a way as to link it to the damage sustained” (§ 54).

The ECLJ welcomes this decision in so far as the Court rightly declared the application inadmissible as regards the three applicants. Nevertheless, the ECLJ deplores the application to the present case of the controversial Costa and Pavan v. Italy case-law, notwithstanding the fact that the internal tribunals recognized that there is “a breach of the applicants’ rights to make an informed choice on keeping the child or not, caused by the medical negligence imputed to doctor E.S” (§ 52). Under no circumstances a “right to have a healthy child” can be considered a human right. It will be contrary to the very essence of the Convention which is to protect all human beings’ life, irrespective of their health status. Unfortunately, this issue cannot be further redressed, as the decision is not susceptible of appeal.