In the next months, the European Court on Human Rights will have to rule on the matter of the status of the human embryo in the case of Adelina PARRILLO versus Italy (no 46470/11). The ECLJ has been authorised to submit an amicus brief.
The case concerns a woman who in 2002, at the age of 48, decided together with her husband to have children by means of medically assisted procreation (MAP). Five embryos were created for this purpose and frozen for future implantation, the applicant suffering from endometriosis. In 2003, the applicant lost her husband and gave up the pursuit of the implantation of the embryos. Eight years later, in 2011, dissatisfied that Article 13 of the Italian Act 40/2004 (Act 40) forbids the destruction of human embryos (including through scientific research), the applicant applied directly to the ECtHR, without exhaustion of national remedies. She alleges that her “property rights” over the five frozen embryos (Article 1 of Protocol No. 1) and her right to private life (Article 8) have been breached by this law because it prohibited her from giving the embryos for destruction through scientific research “obliging her to keep them in a state of cryopreservation until they were no longer viable”.
Alleging a right of “property” over the embryos implies that they are mere goods, and not persons or subjects of law.
In its memorandum, the ECLJ recalls that Act 40 was adopted to set ethical standards and to put an end to what was called the “far-West reproductive”, while scandalous Italian embryologists assisted over 50 year old woman to give birth. This Act has affected the economic sectors of MAP and biotechnology; it has equally caused an ethical debate.
Then, the ECLJ sets out that Act 40 recognises the human embryo in vitro as a subject of law, in the same way as the other subjects involved in MAP and aims to guarantee its right to life. To this end, it forbids the deliberate destruction of conceived embryos (destruction by preimplantation genetic diagnosis (PGD) or by scientific research) and prescribes the freezing of embryos which have not (yet) been implanted. The choice of the Italian legislature is supported by numerous European norms.
The ECLJ recalled that the Court leaves to each State the responsibility to determine when the protection of the right to life begins, and grants the protection of the Convention to the embryo or the foetus from the moment domestic law grants this protection. Therefore, the Convention applies to in vitro embryos which benefit from the protection of the measures of Italian law. Given that embryos are subjects, they cannot be things or objects of a right in rem, and cannot be deliberately destroyed. Abortion allows the destruction of embryos in utero in order to protect the right to life and health of the mother. The destruction of embryos in vitro is not necessary to protect a comparable, concurrent right, such as the right to life of the mother. The legal principle of the primacy of the human being clearly contradicts the justification of the destruction of embryos in vitro in the interest of science. The fact that the majority of European States allow destructive embryonic research is not conclusive because this does not resolve the preliminary question of the nature and the protection of the embryo as a matter of domestic law. Thus, the existence of a quasi-consensus does not create a conventional obligation to legalise such a practice. Therefore, from the moment when the Italian legislature agreed to recognise the embryo in vitro as a subject and the principle of primacy of the human being is applicable, it became impossible to grant the applicant’s requests.
More generally, the present case, Parrillo v. Italy, is an example of the convergence of liberalism in both its moral and economic dimension. Moral liberalism (represented in this case by the support of the radical party) and economic liberalism (represented by the biotech industry) work jointly towards deregulation and the removal of the legal protection afforded to the human embryo in respect of its humanity. Finally, with this Parrillo case, the Court is called on to decide whether, within this domain, the liberal approach should supplant the ontological conception of human rights based on the inherent dignity of each human being which inspired the drafting of the Convention.
Because of its importance, the Section in charge of the case may decide to refer the case to the Grand Chamber.
On 28 August 2012, the second section of the European Court of Human Rights has already censored some provisions of the Act 40, issuing a judgment concerning access to pre-implantation genetic diagnosis (PGD) in the case of Rosetta Costa and Walter Pavan v. Italy (n°54270/10). See here an analysis of this judgment.