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LUDOVICA POLI
CYIL 4 ȍ2013Ȏ
I. Introduction
In its judgment in
Costa and Pavan
v
. Italy
, issued on 28 August 2012, the
European Court of Human Rights (ECtHR) dealt for the first time with pre-
implantation genetic diagnosis (PID). PID is a technique used to identify the
presence of genetic diseases and chromosomal alterations in embryos generated
in
vitro
, before they are implanted in the womb. While confirming the broad discretion
ordinarily accorded to States on such controversial issues, the Court determined that
there had been a violation of Article 8 of the European Convention on Human
Rights (ECHR).
The reasoning of the Court represents a relevant contribution to the bioethical
debate surrounding the application of the pre-implantation genetic diagnosis and
demonstrates the Strasbourg judges’ positive attitude as to the application of PID
to avoid the transmission of serious hereditary diseases. For this reason, the decision
could contribute to a wider approval of the pre-implantation genetic diagnosis
in Europe.
II. The ECtHR’s Focus on the Inconsistency of the Italian Legal Ssystem:
How to Combine Human Rights’ Effective Protection with States’
wide Margin of Appreciation
The applicants in the case
Costa and Pavan v. Italy
were both found to be immune
carriers of cystic fibrosis on the birth of their first child, who was affected by the
disease. Having terminated a second pregnancy because the foetus had the same
disorder, the couple claimed before the ECtHR a breach of Articles 8 and 14 of the
ECHR with respect to the impossibility, under the Italian legal system, to use pre-
implantation screening techniques in order to select and implant a healthy embryo.
PID on embryos generated
in vitro
was commonly practiced in Italy before the
adoption of Law No. 40/2004, which governs medically assisted procreation (MAP).
The legality of such diagnostic techniques then became controversial, due to the
ambiguity of Law No. 40/2004.
1
Law No. 40/2004 allows exclusively sterile or infertile couples to use artificial
fertilization techniques, and only when it is impossible to otherwise remove the
1
Some Authors argue that Law No. 40/2004 does permit the use of pre-implantation diagnostic
techniques at least to exclude the presence of certain inherited diseases (see, for example, Cristina
Campiglio, ‘Tecniche riproduttive e diritti dell’uomo’ in Nerina Boschiero (Ed),
Bioetica e biotecnologie
nel diritto internazionale e comunitario: questioni generali e tutela della proprietà intellettuale
(Giappichelli
2006, pp. 141, 149).
In addition, some (albeit isolated) Italian Courts’ decisions (namely, the order released on 29 June 2009
by the Court of Bologna and the order released on 9 January 2010 by the Court of Salerno) granted the
right to resort to artificial insemination, preceded by pre-implantation diagnosis, to couples of immune
carriers of a genetic disease, in the light of the Constitutional Court’s Judgment No. 159 of 2009,
which recognized the primacy of women’s health over the development of the embryo. Nonetheless,
the lack of clarity of the rules contained in Law No. 40/2004 turned out to make it almost impossible
for a large number of people to access PID.