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of both the mother and the unborn child, abortion has to be considered a more
invasive measure than the exclusion from implantation of an embryo generated
in
vitro
. Second, despite the impressive loophole in human rights law as far as eugenic
practices are concerned, the ECtHR was intrepid enough to suggest that the selective
nature of the PID is not a sufficient reason to prohibit its application. Third, through
both an
ex parte
reading of comparative data and the insistence on European
consensus, the Court clearly revealed its preference for PID aimed at avoiding the
transmission of serious hereditary diseases.
The Court could have gone even further, suggesting to the Italian legislator
the opportunity to find a correct balance between the prohibition and possible
exceptions, for example referring to the different options envisaged, in the 2003
Report, by the Working Party on the Protection of the Human Embryo and Foetus
of the Steering Committee on Bioethics.
37
A similar proposal would have probably
reduced the worries of those lamenting the recognition of an intolerable right to
eugenics, while the decision would still to be considered a milieu by immune carriers
of serious diseases.
Certainly the judgment in the case
Costa and Pavan
touches on a very controversial
issue. At stake are, on the one hand, values and principles expression of a widespread
consciousness and, on the other, the pain and the hopes of many couples. For this
reason, the ECtHR could not offer a solution perfectly satisfying all the ideological
positions involved. While there are a number of questions that cannot be answered,
and many aspects that need to be left to the (almost) complete discretion of the State,
the Court has the role of interpreting the ECHR as a ‘living instrument’, and it has
certainly done that in the present case.
37
Steering Committee on Bioethics (n 31). The 2003 Report identifies three possible approaches: the
definition of a pre-determined list of diseases for which the PID could be permitted; the possibility to
perform the PID for serious not curable diseases, even in the absence of an exhaustive list; and, finally,
a case-by-case approach, based on the assumption that the perception of the severity of a disease and
the ability to respond to it can significantly vary from person to person:
ibid.
34. These suggestions are
not unusual for the ECtHR: for example in the
S.H. and others
v.
Austria
case, while not recognizing
a violation of Article 8 ECHR, it urged the respondent government to revise the rules on assisted
reproduction, in order to properly take into account “dynamic developments in science and society”:
see
S.H. and others
v.
Austria
(n 4), para. 117.