159 / 350
PREǧIMPLANTATION GENETIC DIAGNOSIS UNDER THE EUROPEAN COURT …
covers, as constantly confirmed by the ECtHR case-law, both the decision to regulate
(or not) a particular matter, and the concrete normative choices operated
11
– and,
therefore, to exclude a violation of Article 8 of the ECHR. Only a wider examination
of the Italian legal system brought the Court to the conclusion that, in the present
case, the legitimate aim (
i.e.
, the protection of public morals and of others’ rights
and freedoms) could have been pursued with a lesser impact on the rights of the
applicants, precisely with the application of PID.
The ECtHR’s endorsement of the States’ wide margin of appreciation in delicate
issues, as the one at stake, is nonetheless clearly detectable in the decision. In fact, the
Court deliberately avoided any clear censure of the legal choices operated under the
Italian system, as far as access to MAP is concerned. While it is somehow bizarre that
the Court decided on the ban of PID without any reference to its premise,
i.e.
the
limited access to assisted reproductive technology, the stance adopted by the judges is
perfectly in line with its previous case-law. The ECtHR has consistently stated that:
by reason of their direct and continuous contact with the vital forces of their
countries, the State authorities are, in principle, in a better position than
the international judge to give an opinion, not only on the ‘exact content
of the requirements of morals’ in their country, but also on the necessity of
a restriction intended to meet them.
12
Certainly, the conclusion reached by the Court requires that access to MAP
techniques has to be granted to couples who are immune carriers of hereditary
diseases, regardless of their fertility. A patent violation of Article 14 of the ECHR
would otherwise take place: of those couples wishing to give birth to a child not
affected by the genetic disease which they are healthy carriers of, only those who
also suffer from reduced fertility, infertility (or in presence of a sexually transmitted
disease in the male partner) may use PID techniques. This notwithstanding, the
partial silence of the Court reveals its intention to validate the States’ discretion in
ruling on sensitive matters.
Indeed, the adopted approach is a perfect combination of the margin of
appreciation and the proportionality test and certifies the ECtHR’s appreciable
intention to assure, as much as possible, the protection of fundamental rights in
the face of important public interests, even in those fields of law which, due to their
peculiar nature, require a wide level of discretion to be accorded to Member States.
Doctrine in the European Court of Human Rights’ (1999) ICLQ 638; Steven Greer,
The margin of
appreciation: interpretation and discretion under the European Convention on Human Rights
(Council
of Europe 2000); Yutaka Arai -Takahashi,
The Margin of Appreciation Doctrine and the Principle of
Proportionality in the Jurisprudence of the ECHR
(Intersentia 2001); George Letsas, ‘Two concepts of the
margin of appreciation’ (2006),
Oxford Journal of Legal Studies,
705; Jonas Christoffersen,
Fair Balance:
Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights
(Martinus
Nijhoff Publisher, 2009).
11
S.H. and others
v.
Austria
(n 4), para. 53.
12
ibid.
, para. 94.