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The approach adopted regarding Article 8 is strongly innovative. The Court
assessed the proportionality of a single provision of law not just
per se
, but rather in
light of the relevant Italian legislation on the matter.
Once the Court had accepted that the parents’ desire to give birth to a child,
not affected by the genetic disease that they are healthy carriers, is “
une forms of
expression de leur vie privée et familiale
”,
4
the Court stated that the prohibition of PID
was an interference with the applicants’ private and family life.
5
This interference,
nonetheless, was prescribed by the law and aimed at the pursuit of legitimate
objectives, namely, the protection of morals and of the rights and freedoms of others.
6
In order to evaluate whether the prohibition was also “necessary in a democratic
society”, the Court did not circumscribe its analysis to the compatibility of the ban
with Article 8 ECHR, but rather evaluated it in a broader legal context, covering the
regulation of therapeutic abortion.
7
This assessment induced the Court to determine
an infringement of the right to private and family life, due to the inconsistency
of normative provisions affecting aspirant parents, who are immune carriers of
a hereditary disease. Specifically, it was noted that the Italian law prohibits the
selection and implantation of healthy embryos but allows therapeutic abortion when
the same disorders are found in the foetus through pre-natal screening.
8
The focus on the consistency of domestic regulation of delicate issues, like those
involving hard moral and ethical choices, may present a number of problems. Such
an approach fails to take into due consideration the intricate compromises which
are commonly behind the ruling proceeding in these matters.
9
Nevertheless, the
Court’s approach is noteworthy for the results it achieved in terms of human right
protection, whilst still confirming the broad discretion traditionally accorded to the
States in this field.
An analysis limited to the legitimacy of the prohibition of PID would have led the
Court to confirm the existence of the State’s wide margin of appreciation
10
– which
4
ECtHR,
Costa and Pavan
v
. Italy
No. 54270/10 (28 August 2012), para. 57. This is perfectly in line
with the Court’s case-law, constantly confirming that the notion of “private life” is a broad one, which, in
particular, covers the right to respect of the decision to become or not to become a parent (
Evans
v
United
Kingdom
[GC] No. 6339/05 (10 April 2007), para. 71);
A, B and C
v
. Ireland
[GC] No. 25579/05
(16 December 2010), para. 212;
R.R.
v
. Poland
No. 27617/04 (26 May 2011), para 181; the right of
individuals to see their decision to become genetic parents respected (
Dickson
v.
United Kingdom
[GC]
No. 44362/04 (4 December 2007), para. 66); the access to heterologous artificial procreation (
S.H.
and others
v
. Austria
[GC] No 57813/00, (3 November 2011), para. 82).
5
Costa and Pavan
v
. Italy
(n 4), para. 58.
6
ibid.
, para. 59.
7
ibid.
, para. 69.
8
ibid.
, paras. 60 ff.
9
See Wannes Van Hoof and Guido Pennings ‘Extraterritorial Laws for Cross-Border Reproductive Care:
The Issue of Legal Diversity’ (2012)
European Journal of Health Law
187, 197.
10
On the margin of appreciation see: Alain-Didier Olinga and Caroline Picheral, ‘La théorie de la marge
d’appréciation dans la jurisprudence récente de la Cour européenne des droits de l’homme’ (1995)
Revue trimestrielle des droits de l’homme 567; Michael R. Hutchinson, ‘The Margin of Appreciation