CYIL Vol. 4, 2013

LUDOVICA POLI

CYIL 4 ȍ2013Ȏ

I. Introduction In its judgment in Costa and Pavan v . Italy , issued on 28 August 2012, the European Court of Human Rights (ECtHR) dealt for the first time with pre- implantation genetic diagnosis (PID). PID is a technique used to identify the presence of genetic diseases and chromosomal alterations in embryos generated in vitro , before they are implanted in the womb. While confirming the broad discretion ordinarily accorded to States on such controversial issues, the Court determined that there had been a violation of Article 8 of the European Convention on Human Rights (ECHR). The reasoning of the Court represents a relevant contribution to the bioethical debate surrounding the application of the pre-implantation genetic diagnosis and demonstrates the Strasbourg judges’ positive attitude as to the application of PID to avoid the transmission of serious hereditary diseases. For this reason, the decision could contribute to a wider approval of the pre-implantation genetic diagnosis in Europe. II. The ECtHR’s Focus on the Inconsistency of the Italian Legal Ssystem: How to Combine Human Rights’ Effective Protection with States’ wide Margin of Appreciation The applicants in the case Costa and Pavan v. Italy were both found to be immune carriers of cystic fibrosis on the birth of their first child, who was affected by the disease. Having terminated a second pregnancy because the foetus had the same disorder, the couple claimed before the ECtHR a breach of Articles 8 and 14 of the ECHR with respect to the impossibility, under the Italian legal system, to use pre- implantation screening techniques in order to select and implant a healthy embryo. PID on embryos generated in vitro was commonly practiced in Italy before the adoption of Law No. 40/2004, which governs medically assisted procreation (MAP). The legality of such diagnostic techniques then became controversial, due to the ambiguity of Law No. 40/2004. 1 Law No. 40/2004 allows exclusively sterile or infertile couples to use artificial fertilization techniques, and only when it is impossible to otherwise remove the 1 Some Authors argue that Law No. 40/2004 does permit the use of pre-implantation diagnostic techniques at least to exclude the presence of certain inherited diseases (see, for example, Cristina Campiglio, ‘Tecniche riproduttive e diritti dell’uomo’ in Nerina Boschiero (Ed), Bioetica e biotecnologie nel diritto internazionale e comunitario: questioni generali e tutela della proprietà intellettuale (Giappichelli 2006, pp. 141, 149). In addition, some (albeit isolated) Italian Courts’ decisions (namely, the order released on 29 June 2009 by the Court of Bologna and the order released on 9 January 2010 by the Court of Salerno) granted the right to resort to artificial insemination, preceded by pre-implantation diagnosis, to couples of immune carriers of a genetic disease, in the light of the Constitutional Court’s Judgment No. 159 of 2009, which recognized the primacy of women’s health over the development of the embryo. Nonetheless, the lack of clarity of the rules contained in Law No. 40/2004 turned out to make it almost impossible for a large number of people to access PID.