CYIL 2015

REPRODUCTIVE RIGHTS AND HUMAN DIGNITY totally human and understandable. However, it is difficult to promote their desire as a right 70 and to lay positive obligations on States to guarantee procreation (or a negative obligation not to impede procreation for everyone who wants it) in order to ensure to all (couples and individuals) the basic right to freely and responsibly decide the number and spacing of their children. Although modern technique allows it, there is no coherence in the concept of human dignity and surrogacy. The surrogacy issue is strictly linked with the status of the embryo and medically assisted procreation. We will now develop a short analysis of the status of the embryo. There will not be any analyses of the legal status of the embryo, as there are many different national legal provisions covering this. One may ask why the status of the embryo is treated with the issue of reproductive rights. We argue that the embryo as a natural and usual consequence of procreation is strictly linked to reproductive rights and it cannot be examined separately than from the perspective of these rights. One of the main characteristics of law is to regulate reality and real social interchanges through normative ways. Thus law can regulate and adjust reality in order to fit it to the legal order. This is also the case of embryos being used (not only) for procreative purposes. From the perspective of human rights protection, the European Court of Human Rights has on several occasions touched on the status of the embryo. In the case Vo v. France, 71 the Court held that there was no European consensus among State parties to the Convention “on the nature and status of the embryo and/or foetus”. 72 The Court concluded that Art. 2 was of no applicability to the situation in the case. From an approved common position, Art. 2 of the Convention (speaking about everyone’s right to life) cannot cover an unborn child (embryo or foetus). From the point of law, an embryo is not a subject of rights and thus cannot have any protection under Art. 2. 73 However, society is aware of the fact that human embryos (at least those in a womb) belong to the human race and as such their development has to be protected. This protection (not to say right) is nevertheless not absolute, as abortion is legal, allowing stopping the development of an embryo. A different situation is when it comes to embryos that are frozen or to be put into a womb. If we maintain our previous reasoning, even these embryos are not protected by Art. 2 of the Convention as they are not (yet) a human person. In the perspective of the individualistic approach to the concept of human dignity, the status of an embryo will be dependent on the will of those who are in possession of it. The logic 70 Even though the reasoning of the ECtHR proceeds in this sense. See Costa and Pavan v. Italy (no. 54270/10), 28 August 2012. 71 Vo v. France, (no. 53924/00), 8 July 2004. 72 Ibid. para. 84. 73 Which is a pure legal construction. Law as a normative system can stipulate that even unborn children (embryo or foetus) have with respect to right to life the same protection and same guarantees as living persons.

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