CYIL Vol. 4, 2013

LUDOVICA POLI CYIL 4 ȍ2013Ȏ The approach adopted regarding Article 8 is strongly innovative. The Court assessed the proportionality of a single provision of law not just per se , but rather in light of the relevant Italian legislation on the matter. Once the Court had accepted that the parents’ desire to give birth to a child, not affected by the genetic disease that they are healthy carriers, is “ une forms of expression de leur vie privée et familiale ”, 4 the Court stated that the prohibition of PID was an interference with the applicants’ private and family life. 5 This interference, nonetheless, was prescribed by the law and aimed at the pursuit of legitimate objectives, namely, the protection of morals and of the rights and freedoms of others. 6 In order to evaluate whether the prohibition was also “necessary in a democratic society”, the Court did not circumscribe its analysis to the compatibility of the ban with Article 8 ECHR, but rather evaluated it in a broader legal context, covering the regulation of therapeutic abortion. 7 This assessment induced the Court to determine an infringement of the right to private and family life, due to the inconsistency of normative provisions affecting aspirant parents, who are immune carriers of a hereditary disease. Specifically, it was noted that the Italian law prohibits the selection and implantation of healthy embryos but allows therapeutic abortion when the same disorders are found in the foetus through pre-natal screening. 8 The focus on the consistency of domestic regulation of delicate issues, like those involving hard moral and ethical choices, may present a number of problems. Such an approach fails to take into due consideration the intricate compromises which are commonly behind the ruling proceeding in these matters. 9 Nevertheless, the Court’s approach is noteworthy for the results it achieved in terms of human right protection, whilst still confirming the broad discretion traditionally accorded to the States in this field. An analysis limited to the legitimacy of the prohibition of PID would have led the Court to confirm the existence of the State’s wide margin of appreciation 10 – which 4 ECtHR, Costa and Pavan v . Italy No. 54270/10 (28 August 2012), para. 57. This is perfectly in line with the Court’s case-law, constantly confirming that the notion of “private life” is a broad one, which, in particular, covers the right to respect of the decision to become or not to become a parent ( Evans v United Kingdom [GC] No. 6339/05 (10 April 2007), para. 71); A, B and C v . Ireland [GC] No. 25579/05 (16 December 2010), para. 212; R.R. v . Poland No. 27617/04 (26 May 2011), para 181; the right of individuals to see their decision to become genetic parents respected ( Dickson v. United Kingdom [GC] No. 44362/04 (4 December 2007), para. 66); the access to heterologous artificial procreation ( S.H. and others v . Austria [GC] No 57813/00, (3 November 2011), para. 82). 5 Costa and Pavan v . Italy (n 4), para. 58. 6 ibid. , para. 59. 7 ibid. , para. 69. 8 ibid. , paras. 60 ff. 9 See Wannes Van Hoof and Guido Pennings ‘Extraterritorial Laws for Cross-Border Reproductive Care: The Issue of Legal Diversity’ (2012) European Journal of Health Law 187, 197. 10 On the margin of appreciation see: Alain-Didier Olinga and Caroline Picheral, ‘La théorie de la marge d’appréciation dans la jurisprudence récente de la Cour européenne des droits de l’homme’ (1995) Revue trimestrielle des droits de l’homme 567; Michael R. Hutchinson, ‘The Margin of Appreciation