CYIL Vol. 4, 2013

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.