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PREǧIMPLANTATION GENETIC DIAGNOSIS UNDER THE EUROPEAN COURT …
The question of when “everyone’s right to life” begins for the purposes of
Article 2 of the ECHR has been raised many times in the past. However, neither the
Commission, nor the Court has elaborated a satisfactory answer.
16
The issue is highly
controversial, as not only the ECHR, but also the Convention on Human Rights and
Biomedicine
17
fail to provide elements to define when such rights become applicable
to a human being. This is in contrast to the American Convention on Human Rights,
which explicitly extends the scope of the right to life to the unborn children.
18
The
ECtHR has held that the definition of the beginning of life comes within the margin
of appreciation accorded to Member States.
The first cases before the Strasbourg organs posed the question in connection
with the abortion law and
previous decisions of Convention institutions …establish[ed] that the rights
of the mother to health, autonomy and bodily integrity have priority over the
inchoate state of being of the foetus, within the limits set by each jurisdiction.
19
In fact, “the rejection of claims for ‘fetal rights’ has been increasingly grounded
(…) on their incompatibility with women’s human rights” even beside “the scientific
or medical impossibility of stating when conception occurs or human life begins,
and the philosophical and religious diversity of opinion worldwide as well as within
countries”.
20
In
Vo
v.
France
the issue has been raised for the first time outside of the abortion
context. Nonetheless, the Court stated that it was neither desirable nor even possible
to answer whether an unborn child was a person for the purposes of Article 2 of the
ECHR.
21
The main reasons for such a determination were, on the one hand, that “the
16
See, for example, the European Commission on Human Rights’ decisions:
Bruggemann and Scheuten
v.
the Federal Republic of Germany
No. 6569/75 (17 March 1978);
H.
v.
Norway
No. 17004/90
(19 May 1992);
Paton
v.
United Kingdom
No. 8317/78 (13 May 1980). The Court as well considered
the application of Article 2 to unborn children; see, in particular,
Open Door and Dublin Well Woman
v.
Ireland
No. 14234/88 (29 October 1992) and
Boso
v.
Italy
No. 50490/99 (5 September 2002). In
these decisions, the Court stated that it was not relevant to determine whether the foetus was covered
by the right to life, and formulated its conclusions using the “even assuming” formula. For a comment
to this case law, see Aurora Plomer, ‘A Foetal Right to Life? The Case of
Vo
v.
France
’ (2005),
Human
Rights Law Review
311.
17
Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the
Application of Biology and Medicine (Oviedo, 1997).
18
American Convention on Human Rights (San José, 1969), Art. 4 para. 1: “Every person has the right
to have his life respected. This right shall be protected by law and, in general, from the moment of
conception. No one shall be arbitrarily deprived of his life”.
19
Katherine O’Donovan, ‘Taking a neutral stance on the legal protection of the fetus’ (2006)
Medical
Law Review
, 115, 120. As a matter of fact, “abortion legislation strikes a balance between a pregnant
woman’s right to a private life on the one hand and an adequate legal protection of embryo/fetus on
the other”: Trees A.M. Te Braake ‘Does a Fetus have a Right to Life? The Case of Vo v. France’ (2004)
European Journal of Health Law
381, 388.
20
Rhonda Copelon, Christina Zampas, Elizabeth Brusie, Jacqueline de Vore, ‘Human Rights Begin at
Birth: International Law and the Claim of Fetal Rights’ (2005)
Reproductive Health Matters
120, 125.
21
Judit Sandór, ‘Bioethics and Basic Rights: Persons, Humans and the boundaries of life,’ in Michel