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issue of such protection has not been resolved within the majority of the contracting
states themselves” and, on the other, that “there [was] no European consensus on the
scientific and legal definition of the beginning of life”.
22
The identification of a gradation in the procreation process, detectable in the
Costa and Pavan
judgment, does not completely alter the stance of the Court as to
the question of the beginning of life, which still remains not completely answered.
Nonetheless, the Court went so far as to deal with an issue that it had previously
considered with extreme carefulness, not just when the question was strictly related
to the protection of the mother’s rights, but also when the circumstances of the case,
as in
Vo
v.
France
, did not require a balance between the rights of an unborn child and
those pertaining to a third subject.
IV. Limiting Eugenics Concerns: a Pioneering Role for the ECtHR
Another relevant element of the judgment in
Costa and Pavan
is represented by
the stance adopted by the judges with reference to the alleged eugenic nature of the
PID. The ECtHR, being a pioneer in addressing this issue, made it clear that PID
does not necessarily involve perverse eugenic applications.
New scientific possibilities of PID have resulted in a shift from “traditional”
application of eugenics (
i.e.
, projects for the improvement of the human race based
on the selection by the State of who can procreate), as they modify both who is
responsible for and the victims of eugenic intervention.
23
Future parents are now in
a position to know in advance the genetic makeup of their children: therefore, their
specific aspirations as to their offspring’s characteristics can (at least potentially) be
satisfied. From this perspective, PID can transform parents from “victims” of a State’s
impositions to being “responsible” for a choice that is inflicted on their potential
children.
24
For these reasons, undoubtedly, PID deserves special attention from a human
rights perspective. Nevertheless, for the time being, no international law document
distinguishes between possible different forms of “contemporary” eugenics: from
a purely “negative” one (aimed at preventing the implantation of embryos presenting
serious genetic diseases), to various forms of ‘positive’ eugenics, such as allowing
the parents to select an embryo with specific genetic features meeting their liking
or, which would permit the use organic materials of the embryo itself (or the child,
once born) to treat a living brother affected by a serious disease.
25
No indication,
in particular, comes from the most significant instrument on the relation between
Rosenfeld and András Sajó (Eds),
The Oxford handbook of comparative constitutional law
(Oxford
University Press 2012), p. 1142.
22
ECtHR Grand Chamber,
Vo
v.
France
(2004) 82. For a comment, see Tanya Goldman, ‘Vo v. France
and fetal rights: the decision not to decide’ (2005)
Harvard Human Rights Journal
277, 279.
23
Cristina Campiglio,‘Eugenetica e diritto internazionale’ in Nerina Boschiero (Ed),
Ordine internazionale
e valori etici: VIII Convegno, Verona, 26-27 giugno 2003
(Editoriale Scientifica 2004) 453, 461.
24
ibid.
25
ibid.