In surprise ruling, European Court of Human Rights upholds Italy’s ban on embryo research

Are human embryos 'possessions' to be used at the whim of their 'owner'? That, in essence, is what the judges were asked to decide.
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Building of the European Court of Human Rights.
By Jeanne Smits, Paris correspondent

By Jeanne Smits, Paris correspondent

September 15, 2015 (LifeSiteNews) -- The Grand Chamber of the European Court of Human Rights recently affirmed Italy’s right to protect human embryos as it sees fit, in a ruling that rejected an Italian woman’s request that she be allowed to donate her cryogenically frozen embryos to scientific research. Adelina Parrillo was challenging a law passed in Italy in 2004 that prohibits research on human embryos, on the grounds that the law is “incompatible with her right to respect for her private life and her right to the peaceful enjoyment of her possessions,” as guaranteed by the European Convention of Human Rights.

In other words, Parrillo was asking the Court to recognize that human embryos are objects, “possessions” whose owners may use them as they see fit.

In the context of widespread and often liberal abortion laws in many of the 47 member states of the Council of Europe who are party to the European Convention of Human Rights, a positive answer from the Court would not have been surprising, the more so because the European Union – whose 27 member states are also European Council members – finances embryo research in its own right. But the Grand Chamber, in a decision that cannot be appealed, stood firm – or nearly so. Sixteen of its seventeen judges upheld the research ban as imposed by Italy’s Law n° 40/2004.

Adelina Parrillo, now in her early sixties, obtained the embryos through in vitro fertilization in 2002 together with her husband, a filmmaker who died in tragic circumstances during a bomb attack in Iraq in late 2003. At that time the embryos had not yet been implanted, and the widow decided not to go ahead with the medically assisted reproduction procedure. The frozen embryos were kept in the Rome fertility clinic where the in vitro fertilization took place and are still in storage there, in what Jérôme Lejeune, the great French pro-life geneticist, once called the “Concentration can” when witnessing in favor of the life of other frozen embryos in Maryland, Tennessee, back in 1989.

But contrary to the Maryland case that involved a woman who wanted to obtain custody of her and her ex-husband’s frozen embryos in order to give them a chance to live through implantation, Adelina Parrillo, who is now in her sixties, wanted her embryos offered up to a “noble cause,” as she calls it: embryonic stem cell research. After a number of oral requests she formally presented a written demand, explaining that donating the five embryos would “be a source of comfort to her after the painful events that had occurred in her life,” rather than destroying them or letting them die.

The clinic’s director refused: since 2004, using embryos for research is considered a punishable offence in Italy. Parrillo immediately turned to the European Court of Human Rights, arguing that any action before the ordinary courts in Italy was bound to fail because of the “blanket ban” on donating embryos to scientific research. The Court agreed that she would probably have found no “effective remedy” in the Italian judiciary system and agreed to examine the affair.

It also agreed that Parrillo rightly invoked article 8 of the European Convention of Human Rights because “the applicant’s ability to exercise a conscious and considered choice regarding the fate of her embryos concerns an intimate aspect of her personal life and accordingly relates to her right to self-determination.” And not her “family life” which is also protected under article 8: Parrillo was most emphatically not pleading for her embryos to be implanted – a course which is not in any case open to widows under law 40/2004.

The ECHR agreed that the concept of “private life” is a broad one and that freedom of choice as to the fate of frozen embryos is part of that, adding that Italian law itself “attaches importance to the freedom of choice of parties to in vitro fertilization regarding the fate of embryos not destined for implantation.” It also stated that conceived embryos “contain the genetic material of the person in question and accordingly represent a constituent part of that person’s genetic material and biological identity.”

This is equivalent to saying that a human embryo is not fundamentally distinct from its parents and has no claim to personhood. It must be said that Parrillo had argued “that the ban on donating embryos was completely illogical, since the only alternative offered by the system was the death of the embryos.” At the hearing, she went on to “point to the inconsistencies present in the Italian legal system, submitting that the embryo’s right to life relied on by the Government was irreconcilable with the possibility available to women to abort up until the third month of pregnancy and with the use by Italian laboratories of embryonic cell lines obtained from the destruction of embryos created abroad.”

Surprisingly, though, the Court stopped short of ordering the Italian authorities to let Parrillo’s embryos be “released” for scientific research. During the hearing, the Italian government’s representative submitted that the objective pursued by law 40/2004 was to protect the “embryo’s potential for life.” The Court proceeded warily: probably to avoid shedding an unpleasant light on abortion laws. In a contradictory statement, the judgment reads: “The Court acknowledges that the ‘protection of the embryo’s potential for life’ may be linked to the aim of protecting morals and the rights and freedoms of others, in the terms in which this concept is meant by the Government. … However, this does not involve any assessment by the Court as to whether the word ‘others’ extends to human embryos.”

So why should they be protected? The Court avoids the point, underlining the absence of “consensus” in the member States, adding that their “margin of appreciation” will be wider “where the case raises sensitive moral or ethical issues.”

As Parrillo’s case did not concern “prospective parenthood,” the Court decided that “the right invoked by the applicant to donate embryos to scientific research is not one of the core rights attracting the protection of Article 8 of the Convention as it does not concern a particularly important aspect of the applicant’s existence and identity.”

That is the main reason why the ECHR decided the five embryos should not be given up for research as Parrillo would have it, quoting several European Council members who ban research on embryonic cells altogether and others, including Italy, who only allow it on embryonic stem cell strains imported from abroad. “Domestic authorities enjoy a broad margin of discretion to enact restrictive legislation where the destruction of human embryos is at stake, having regard, inter alia, to the ethical and moral questions inherent in the concept of the beginning of human life and the plurality of existing views on the subject among the different member States.”

The judges also noted that the Court did not “have any evidence certifying that her partner, who had the same interest in the embryos in question as the applicant at the time of fertilization, would have made the same choice.” A strange remark, given that the Court recognized that such a choice is rightly prohibited and sanctioned under Italian law.

The Court, having said that member states can or cannot give a status to human embryos, went on to assess Parrillo’s arguments that her embryos are her “possessions” over which she has a right of ownership. It replied that “possession” is not limited to “ownership of material goods” but did not agree that embryos are possession. “It considers, however, that it is not necessary to examine here the sensitive and controversial question of when human life begins as Article 2 of the Convention is not in issue in the instant case.”

Several judges, such as Judge Pinto de Albuquerque, agreed with the judgment while underscoring its “inconsistency”: “The majority’s reasoning is both contradictory in terms of logic and scientifically inadmissible. It is contradictory in terms of logic because they admit, on the one hand, that the embryo is an ‘other’ for the purposes of Article 8 § 2 of the Convention, since the protection of the embryo’s potential for life may be linked to the aim of protecting the ‘rights and freedoms of others.’ On the other hand, however, the same majority affirm that this acknowledgment does not involve any assessment by the Court as to whether the word ‘others’ extends to human embryos. The patent logical contradiction between the two statements is so obvious that it is irremediable."

Judge Dedov regretted that the Court did not go the whole way: “In my view, the embryo’s right to life is a key criterion for reaching the right decision,” he wrote. His “concurring opinion” is particularly clear:

“I am not convinced that the margin of appreciation or the lack of consensus should prevent the Court from reaching such a conclusion. Since the right to life is absolute, and is one of the fundamental rights, neither the margin of appreciation nor sovereignty nor consensus is a relevant factor. A margin of appreciation is required only to determine which measures are necessary to protect a fundamental value (for example, public expenditure or a time-limit on the cryopreservation of embryos). The embryo’s life cannot be sacrificed for the purpose of inter-State competition in biomedicine.

“The right to life is absolute, and this fundamental tenet makes it unnecessary to explain why a murderer, a disabled person, an abandoned child or an embryo should be kept alive. We do not need to evaluate their usefulness for society, but we remain hopeful regarding their potential. The embryo’s right to life cannot be called into question by the fact that, until implantation, its potential for development is something that can be maintained artificially, because any such new technology is a natural development created by human beings.”

He suggested the embryos should be given up anonymously for adoption.

Other judges also underscored the incoherencies of the judgment which refused to push its reasoning to a logical conclusion in favor of the respect of human life. “Thus, the intrinsically moral or ethical nature of a legal issue under the scrutiny of the Court should not be a factor limiting the latter’s competence or determining the margin of appreciation to be afforded to States. The argument regarding the sensitive ethical or moral nature of the issue at stake is hence irrelevant in establishing the width of the margin of appreciation,” wrote judge Pinto de Albuquerque.

In deciding to protect human embryos from destructive research the ECHR took a relativistic standpoint. Relativism works both ways: in this case, it tilted in favor of human life. But not all the way: the judges were not prepared to condemn embryo research as such.

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