165 / 350
PREǧIMPLANTATION GENETIC DIAGNOSIS UNDER THE EUROPEAN COURT …
une situation spécifique laquelle, d’après les éléments de droit comparé dont la
Cour dispose, outre l’Italie, ne concerne que deux des trente-deux Etats ayant
fait l’objet d’examen, à savoir l’Autriche et la Suisse. De plus, quant à ce dernier
Etat, la Cour note qu’un projet de modification de la loi en vue de remplacer
l’ interdiction du D.P.I., telle qu’actuellement prévue, par une admission
réglementée est actuellement en cours
36.
Not only is such remark not strictly required for the conclusions on Article 8
ECHR, the Court’s interpretation of the comparative data also appears to be
erroneous. The documents prepared by the Steering Committee on Bioethics and
the Joint Research Centre show that, among the 30 States considered, 20 authorize
PID (including three States permitting the screening even in the absence of a detailed
regulation), while such a practice is not allowed, not only in those States explicitly
banning it, but also in the other nine countries, which have not adopted rules and
are not reported as
de facto
practicing the PID. In other words, it is possible to infer
that in these countries the lack of a regulation on PID results in an inability to access
such procedures.
A similar interpretation of the available data would have led the Court to
hold that the European consensus on the issue is not yet consolidated and that, as
a consequence, States have a wide margin of appreciation regarding how to regulate
access to PID. Nonetheless, this would have not changed the Court’s findings. The
lack of consistency of the Italian legal provisions on PID and on therapeutic abortion
would still have represented an infringement of Article 8 of the ECHR. Indeed, the
same reasoning can be applied to those legal systems in which, in view of a possible
access to therapeutic termination of pregnancy, the absence of rules on PID implicates
the unavailability of this screening technique.
Both the reading of the comparative data provided by the Court and the
relevance accorded to them, suggest the Strasbourg judges’ support for a legislative
solution that allows the pre-implantation genetic diagnosis in the case of serious
genetic disorders, even regardless of the need to guarantee internal coherence within
national legal systems.
VI. Concluding Remarks: the Need for a Detailed Regulation
The ECtHR Court of Human Rights usually maintains a very cautious approach
in evaluating controversial bio-ethical issues, firmly believing that States are in the
best position to meet the society’s perception and needs. This is also confirmed in the
present case, as the Court avoided calling for the need to extend MAP techniques to
subjects who are not currently included in the categories envisaged by L. 40/2004
and limited its focus on the ban of PID.
Nevertheless, in
Costa and Pavan
the Court adopted a very brave approach, in
three different directions. First, it has clearly declared that, from the point of view
36
Costa and Pavan
v.
Italy
(n 4), para. 70.