CYIL 2014

251

WHAT IS NOT RIGHT IN HUMAN RIGHTS PROTECTION?

this legislation violates the right to the private and family life of the applicants, who

only have the possibility, if they want to have a child, to conceive it in a natural way

and to resort to abortion

when the foetus is touched by the genetic disease.

We can agree that the Italian legislation presents an apparent difference between

those who can procreate naturally and those who cannot (or if the man suffers from

a sexually transmissible viral disease) and that such an inconsistency may be seen as

prejudicial to the applicants. However, it is difficult to accept the reasoning of the

Court claiming that “the desire to conceive a child unaffected by genetic disease

attracts the protection of Art. 8 of the Convention and is the form of their private

and family life”.

One can argue that this desire is fully understandable and even

logical if the parents are raising another child with the same disease; however, a similar

unhappy situation cannot lead the Court to consider this desire as the right to private

and family life. Should it be so, it would really mean that there is a right to have a

healthy child, which is biding on State authorities.

In our opinion, there is a total consistency in Italian law concerning PGD and

assisted reproduction techniques. According to the Court, in the situation of the

applicants there is a “concomitant risk that the child will be born with the disease, which

leads to the suffering inherent in the painful decision to undergo, as the case may be,

an abortion on medical grounds”.

PGD as applied to infertile couples is necessary

first for diagnosing those embryos which have potential to grow once implanted in a

woman’s womb. The PGD method is a corollary to assisted reproduction techniques,

where the first aim is to conceive a child if the couple cannot proceed to this in a

natural way. The Court tries to overturn this viewpoint in saying that, no matter

what way the child is conceived, the aim is to have a healthy child. This is even

stressed by the Court – that, in the situation of the applicant, they can be led to resort

to abortion if the foetus is touched by the genetic disease. We argue that as there is

no right for abortion; there is no duty of abortion. It surely is an unhappy situation

to raise an unhealthy child, but the aim of law is not, in our opinion, to make them

happy but to regulate the life situation and to protect society. The present case shows,

to the contrary, that society can be happy only if there are healthy members of the

society, and those who are not healthy are not even welcomed. If this is not a very

good example of eugenic methods, what else could it be? It may be that the judgment

only notes a violation of an article of the Convention; but we will see in a couple of

years which way this erroneous interpretation will take in later judgments of the Court.

Free will of States to choice challenged

One of the aspects of States’ sovereignty in international law is a rather total

liberty to choose international obligation. This liberty is limited by peremptory

This was the case in 2006 when the applicant became pregnant in the natural way and found out the

foetus was touched by the illness both parents were healthy carriers of.

§ 50 of the Judgment.

§ 59.