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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.