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REPRODUCTIVE RIGHTS AND HUMAN DIGNITY
totally human and understandable. However, it is difficult to promote their desire
as a right
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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,
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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”.
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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.
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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
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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.
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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.