Human embryos are not just "things"
On August 27, 2015, the Grand Chamber of the European Court of Human Rights issued its judgment in the case Parrillo v. Italy (Application No. 46470/11) concerning the status of human supernumerary embryos conceived in vitro and placed in cryopreservation.
The “mother” alleged the existence of a real right on “her” embryos; she complained of the impossibility of giving “her” embryos to the research so that they are destroyed at the service of science. She alleged a violation of the right to respect for her private and family life as well as her ownership of “her” embryos.
In essence, the applicant also called into question both the legal status of supernumerary embryos under the European Convention on Human Rights and the Italian law (Law No. 40/2004) banning the destruction of human embryos, including in the context of scientific research.
- On the issue of property rights, the Grand Chamber unanimously rejected this complaint on the grounds that “human embryos cannot be reduced to “possessions”” (§215). Indeed, the right of ownership may only be exercised on things, or “goods”. The right recognizes only two categories: “goods” and “persons”. The logic dictates that human embryos are persons when they are not goods. Yet the Court fails to say it, or denies it.
- On the issue of an infringement on the privacy of the “mother”, the Grand Chamber, almost unanimously (16 against 1) ruled that Italy can legitimately prohibit the destruction of human embryos in order to comply with “the rights and freedoms of others” - other people here being human embryos - because Italian law recognizes to every human embryo a quality of “subject” equal to its parents. However, the Court states that it “does not involve any assessment by the Court as to whether the word “others” extends to human embryos” (§167). It would indeed limit the license of States to undermine embryos’ integrity.
The ECLJ intervened in this case in support of the Italian government and has submitted observations to the Court.
The ECLJ, as several judges of the Grand Chamber, regrets the contradiction in which the Court is held prisoner: recognizing that the human embryo is not a thing, while being an “other”, without being a person ... This contradiction results from the fear of weakening the conventionality of abortion.
Another questionable element: the Court holds that the “beginning of human life” is a “concept” capable of “plurality of (...) views on the subject among the different member States” (§180). However, the beginning of human life is obviously a known biological fact realized by the fusion of gametes; this is not an idea on which minds could legitimately diverge. This statement is also intended to make way for abortion.
Another criticism is to be made to this case: the assertion that embryos “represent a constituent part of that person’s genetic material and biological identity” because “the embryos contain the genetic material” of the mother (§158). However, as several judges clearly said in their separate opinion: “Whilst sharing the genetic make-up of its biological ‘parents’, an embryo is, at the same time, a separate and distinct entity albeit at the very earliest stages of human development.” It is based on this erroneous assertion that the majority of the judges of the Court inferred that the impossibility for the applicant to give the embryos for destruction constitutes an interference with her private life.
The ECLJ welcomes nonetheless this judgment which contributes, despite its weaknesses and inconsistencies, to the respect for human life from conception. The Court recognizes that a human embryo even conceived in vitro and that is no longer the object of a parental project is not just a thing. Its protection against destruction is legitimate in the name of “rights and freedoms of others.”
The ECLJ also praises the quality of most separate opinions issued by several judges in the annex of the judgment. They are remarkable because of their legal rigor and humanity with regard to unborn life. The ECLJ makes a particular tribute to the opinion of the judges Pinto Albuquerque and Dedov.
The judge Dedov states inter alia:
“The right to life is absolute, and this fundamental tenet makes it unnecessary to explain why a murderer, a disabled person, an abandoned child or an embryo should be kept alive. We do not need to evaluate their usefulness for society, but we remain hopeful regarding their potential.”
As for Judge Pinto de Albuquerque, he concluded his excellent and very thorough separate opinion like so:
“Unborn human life is no different in essence from born life. Human embryos must be treated in all circumstances with the respect due to human dignity. Scientific research applications concerning the human genome, in particular in the field of genetics, do not prevail over respect for human dignity. Scientific progress must not be built upon disrespect for ontological human nature. The scientific goal of saving human lives does not justify means that are intrinsically destructive of that life.
The beginning and end of human life are not questions of policy subject to the discretion of the member States of the Council of Europe.”