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PAVEL BUREŠ
CYIL 6 ȍ2015Ȏ
when examining the relative issues of surrogacy, medically-assisted procreation and
the status of the embryo, to tackle this question.
We argue that the concept of human dignity has to been perceived in its entirety
(complexity), as a complex of individual and collective human dignity and as being
an essential element of the
humanness
of humanity. Human rights protection should
thus aim at this, looking for humanness in every situation. An important issue
of this over-all concept of human dignity is so individual liberty. This individual
liberty when striking against a State’s power, cannot be put on a “totalitarian”
pedestal but is able to contribute to the humanness of society. Even though, the
role of the European Court of human rights is primarily to protect those human
rights contained in the European Convention and its additional Protocols, its
non-jurisdictional role consists also in interpreting and “evolving” these rights in
the whole system of the protection of human being and human dignity. The Court
should have a clear concept of human dignity and should converge towards it with
every judgment it makes.
We have shown, however, that this convergence of the Court towards the concept
of dignity is rather an exception. Having examined three specific issues relating
to reproductive rights – surrogacy, the status of embryos and medically-assisted
procreation, we concluded that the Court remains within the approach of a (strict)
opposition between individual liberty and the State’s interference (State’s power). By
promoting this individualistic approach the Court is softly diverging from the over-all
concept of human dignity. This directional heading of the Court, if it remains, will
sooner or later cause a sort of relativeness of human dignity, and thus the concept
of human dignity will lose its main characteristics, which are universality and
uniqueness.