Czech Yearbook Vol. 4 2013

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PREǧIMPLANTATION GENETIC DIAGNOSIS UNDER THE EUROPEAN COURT …
the development of medical science and human rights, the Convention on Human
Rights and Biomedicine.
Despite the complexity of the question and the absence of any guidance under
international law as to the legitimacy of (at least) some forms of eugenics, the ECtHR
demonstrated that it had a clear idea on the legitimate scope of the PID. In particular,
the Court rejected the objection of the respondent State, according to which the
applicants were asking for the recognition of a right to have a healthy child which,
not only, is not covered by the Convention, but also, and above all, entails a eugenic
practice. According to the Court, the PID could not guarantee that the applicants’
child would not face other genetic problems or any other complications during
the pregnancy.26 In other words, the ECtHR held that the PID cannot guarantee
a healthy baby in absolute terms.
The judgment clearly supported the applicants’ right “de mettre au monde en
enfant qui ne soit pas affecté par la maladie dont ils sont porteurs sains”.27 While the
ECtHR tried to deny it with a rhetorical gimmick (affirming that the applicants were
claiming the right to use PID techniques, rather than the right to have an healthy
baby 28 ), the judgment substantiated the right not to transmit genetic disorders, or
– at least – the right to use all the possibilities offered by medical science to achieve
this aim. In this direction,
[O]ne cannot claim that the right only concerns access to themeans of selection
since its aim is the procreation of a child devoid of the disease. It is clearly
a right to a healthy child, which implies access to the means of selection.29
Moreover, the Court itself admits that the PID does have a eugenic scope.
According to the judges, the respondent State failed to prove that the reasons
founding the Italian ban on pre-implantation diagnosis, namely the limits to the dignity
and freedom of conscience of health workers, on the one hand, and the risk of “eugenic
drifts”, on the other, were lower in the case of therapeutic abortion, motivated by
a genetic disease.30 Even abortion, if practiced at (and motivated by) the presence of
a serious disease affecting the foetus, would have, sensu lato, eugenic purposes.
The ECtHR used the comparison with therapeutic abortion to evaluate the
PID, and, once more, the Court has shown a very clear position on a delicate issue,
probably the most debatable question at stake, at least from a bioethical perspective.
The conclusion is clear: since the selective nature is not just a distinctive element of
PID, concerns regarding a strictly “eugenic” application of such a technique would
not be sufficient to substantiate its prohibition.
26 Costa and Pavan v. Italy (n 4), para. 54.
27 ibid., para. 65.
28 ibid., para.53.
29 Grégor Puppinck, ‘Prohibition of Pre-implantation Genetic Diagnosis: the ECHR Censors the Italian Law’
(turtlebayandbeyond, 30 August 2012) <
pre-implantation-genetic-diagnosis-the-echr-censors-the-italian-law/> accessed 12 March 2013.
30 Costa and Pavan v. Italy (n 4), para. 63.