CYIL 2015

REPRODUCTIVE RIGHTS AND HUMAN DIGNITY the jurisprudence of the European Court of Human rights, most cases relating to procreative rights are covered ratione materiae by Article 8 of the Convention. These cases in relation to the right to family or private life usually concern the centre of procreative rights, i.e. the liberty to decide freely and responsibly the number and spacing of children. However, in some cases where the intervention of State has exceeded certain limits of Article 8 of the Convention, the Court ruled a violation of Article 3 of the Convention (prohibition of inhuman and degrading treatment). This was particularly in cases relating to forced sterilisation, but also to some cases regarding abortion issues. 55 With respect to the right to life (Article 2 ECHR), contrary to what one may think, the Court has never ruled that procreative rights or issues would be out of the ratione materiae coverage of this Article. Considering the legal protection of embryos as a very delicate issue, the Court based its judgment argumentation on the lack of consensus between Council of Europe Member States. 56 As previously mentioned, if we examine the interconnection between reproductive rights and human dignity, the heart should be seen in the liberty to procreate. Thus, the primordial question is to know whether this liberty can (should or must) be limited by society (represented by State power and authority). Both approaches might be plausible: one stipulates that there is no way to limit this liberty by State power; it puts the sole desire to have an offspring of his/her own on a sort of pedestal and does not want to be limited by any cultural or societal concepts. The second approach, totally in contrast to the first one, enunciates that there are always some limitations to the liberty to procreate posed by State power, being of cultural, societal, political, and economic or another kind – this is only just the way that in a democratic society they are formed into some interest which prevails. 57 However, the right challenge concerning possible limitations of the liberty to procreate is to apprehend this liberty in the context of human dignity conceived individually but also collectively (the human dignity of humanity). We have thus to abandon the unilateral perception of total (or even “totalitarian”) liberty being limited by State power in some situations, especially in procreative issues. The legal order is unable to satisfy the sole, often even very intimate desire of a person to have an offspring of his/her own. Even so there might be some medical interference. If there are some apparent limitations , it still does not mean that liberty within the perspective of human dignity is limited. In this regard, when we analyse the individual liberty to procreate in all its aspects, we always have to bear in mind the collective aspects of human dignity as well. In other words, it is not only an individual liberty which is at stake, but also the very character 55 R. R. v. Poland (no. 27617/04), 26 May 2011. 56 See e.g. Grand Chamber judgment in Evans v. United Kingdom, (Application no. 6339/05), 10 April 2007, or Vo v. France, (no. 53924/00), 8 July 2004. 57 For example, as previously mentioned in the Evans v. UK case, the desire of one partner to become a parent is limited by the same desire of the second partner. Thus, there must be a simultaneous consent of both partners to implant the frozen embryo into the uterus of the female partner.

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