CYIL 2015

253

REPRODUCTIVE RIGHTS AND HUMAN DIGNITY

the use of MAP as a specific technique to help infertile couples to embody their desire

to procreate. But it is questioning the conditioning of this technique with respect to

the development of embryos. Two issues are at stake during MAP – the quality of the

embryos and the fate of un-used embryos.

In the case of natural procreation, there is a natural selection in the quality of

gametes (ova and sperms). The same applies for the first moment of an embryo’s

existence (a human being – human race embryo) before and even after a natural

implantation (in the womb). This natural selection is substituted artificially and

to obtain at least two suitable embryos for artificial implantation, nine to twelve

‘procreations’ are needed. From the perspective of the individualistic human rights’

approach, MAP is fulfilling an individual’s desire to procreate, letting a third person

select a

quality

embryo, to the detriment of other embryos which were not judged to

be of sufficient quality.

Without entering into specific questions such as chromosomic or chromatic

aberration issues or, more generally, issues of eugenics, it is evident that the technique

of MAP does not correspond to the over-all conception of human dignity. In this

regard, it is quite impossible to apprehend how the existence of one (qualified)

embryo can be compared to the existence of others. The concept of human dignity

is far from being employed for embryos, but from the perspective of those who carry

out MAP it cannot correspond to human schemes.

This issue was tackled most in the case Costa and Pavan,

where the Court¨

handled a question of the right to have a child unaffected by a disease

and so

the possibility of eliminating those embryos which were not of a required quality.

From the individualistic point, one can understand the pain and sorrow of those

who take these issues into consideration; however, from the point of view of the over-

all concept of human dignity, it is difficult to accept that States should have some

positive obligation in this regard.

5. Conclusion

We could see that the Court in its jurisprudence relating to reproductive rights is

developing the concept of human dignity in its entirety only a little. It promotes an

individualistic approach to human dignity stemming from an element of individual

liberty to be opposed to a State’s power (not to say its oppression). In cases with regard

to procreation the Court is often reluctant to present deeper juridico-philosophical

argumentation on these very delicate issues and has left it up to the States’ assessment.

Although the Court has never been directly asked to rule on the interconnection

between reproductive rights and human dignity, it has had, however, the possibility,

Costa and Pavan v. Italy (no. 54270/10), 28 August 2012.

Ibid

. para 58.