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PAVEL BUREŠ
CYIL 6 ȍ2015Ȏ
Natural reproduction not only of human beings (but all beings, and sometimes
of human concepts
3
) are quintessential for human society. Thus procreation is an
element of the functioning of society. Although reproduction is usually seen more
as a term of natural science,
4
it has some other features in the humanities as well –
sociology, anthropology, philosophy
5
and law. As with other human activities without
a legal
prima causa
, legal aspects and regulations have started to cover reproduction
6
as well.
7
As procreation is something related to the very nature of a human being,
the concept of human dignity is strictly connected to it. The aim of this article is to
show this interconnection between procreation and especially reproductive rights
and human dignity in the context of the jurisprudence of the European Court of
Human Rights (hereafter “ECtHR” or “the Court”). Reproductive rights and human
dignity are often used as very generic terms. For the purposes of this article, they need
to be first, in section 2, defined precisely in order to develop them later on within the
whole argument of the article. The general presentation of their interconnection (3)
will precede an analysis of recent case-law of the Court (4), finishing with conclusions
on convergence and divergence.
2. Reproductive rights, human dignity – definitions
As previously stated, procreation is related to the very nature of a human being.
One may consider reproduction as an element of human dignity in the sense of the
continuation of humanity. For the purposes of this first part we will, however, define
both concepts separately.
Reproductive rights
are not explicitly defined in international instruments
(binding or non-binding ones). These rights are usually related to the broader
concept of (sexual and) reproductive health
8
derived from the right to life and the
3
Such as cultural, scientific, philosophic or religious concepts. These usually bear witness to some type
of transformation through the ages; however they are continuing to be basic elements of human society
worldwide.
4
Biology, describing the biological process of reproduction and medicine treating some fertility
problems.
5
There is no need here to further develop different socio-philosophical trends supporting some limits
on human procreation (e.g. Neo-Malthusiasm), or the China one-child policy. For some politico-legal
aspects on the reproductive rights movement and its norms entrepreneur, see YOSHIHARA, Susan.
Lost in Translation: The Failure of the International Reproductive Rights Norm. 11 Ave Maria Law
Review. 2012–2013, p. 367.
6
The terms “reproduction” and “procreation” are usually used interchangeably. However, one can see
a slight difference. Procreation usually refers to the natural reproduction of human beings, whereas
reproduction, being first a general term, is used secondarily with artificial techniques – artificial
reproductive technique. But one can also encounter “MAP– medically-assisted procreation”.
7
Be it, for example, through restrictions on marriage formation between siblings with the aim of
regulating genetic disease.
8
The right to the highest standard of health. (International Covenant of Economic, Social and Political
Rights, Art. 12).