Woman’s wish to donate unwanted embryos to scientific research rejected by Strasbourg Court

cdce0842e2fac4bcf0335ab5c367-is-embryonic-stem-cell-research-wrongParrillo v Italy (application no. 46470/11) Grand Chamber of the European Court of Human Rights, [2015] ECHR 755 (27 August 2015) – read judgment

The Grand Chamber of the Strasbourg Court has ruled that the Italian ban on the donation of embryos obtained by IVF procedures to scientific research was within Italy’s margin of appreciation and therefore not in breach of the applicant’s right of private life and autonomy, even though she was willing to give the embryos to scientific research, since she no longer wanted to proceed with pregnancy after her partner was killed covering the war in Iraq. By donating these cryopreserved embryos to research she would, she argued, make an important contribution to research into medical therapies and cures. 

A strong dissent to the majority judgment is worth pointing up at the outset. The Hungarian judge, Andras Sajó, found Italy’s general ban quite out of order. Not only did it disregard the applicant’s right to self-determination with respect to an important private decision, it did so in an absolute and unforeseeable manner.

The law contains no transitional rules which would have enabled the proper authority to take into consideration the specific situation of the applicant, whose embryos obtained from the IVF treatment were placed in cryopreservation in 2002 and whose husband passed away in 2003, three months before the law entered into force.

At the time the applicant faced the ban, the frozen embryos had passed the point of viability; their only fate would be incineration after an indefinite period of cryopreservation. Her interest in donating her embryos to scientific research, rather than allowing them to remain unused, was, in the words of the dissenting judge, “a deeply personal and moral decision.”

This choice is driven by her desire to honour her late partner and to further invaluable medical research with the potential to save lives.  According to expert testimony presented at the hearing (and to many other international medical and scientific sources), research deriving from embryonic stem cells is currently being used in clinical trials for spinal cord injuries, Parkinson’s disease and other diseases that are currently incurable or difficult to cure. …Such research uses the pluripotent (undifferentiated) cells created through the IVF procedure to develop a greater understanding of human development and to discover new ways of treating diseases that have been devastating and incurable for many people around the world. The cells created through IVF are unique and valuable biological material, which the applicant wishes to put to use, rather than leave to lose viability as they remain frozen indefinitely.

I will return to Judge Sajó’s important dissent after the following summary, which is based on the  Court’s press release. 

Summary

The case concerned a ban under Italian Law no. 40/2004, preventing Ms Parrillo from donating to scientific research embryos obtained from an in vitro fertilisation which were not destined for a pregnancy. The Court, which was called upon for the first time to rule on this issue, held that Article 8 was applicable in this case under its “private life” aspect, as the embryos in question contained Ms Parrillo’s genetic material and accordingly represented a constituent part of her identity. The Court considered at the outset that Italy was to be given considerable room for manoeuvre (“wide margin of appreciation”) on this sensitive question, as confirmed by the lack of a European consensus and the international texts on this subject.

The Court then noted that the drafting process for Law no. 40/2004 had given rise to considerable discussions and that the Italian legislature had taken account of the State’s interest in protecting the embryo and the interest of the individuals concerned in exercising their right to self-determination. The Court stated that it was not necessary in this case to examine the sensitive and controversial question of when human life begins, as Article 2 (right to life) was not in issue. Noting,  that there was no evidence that Ms Parillo’s deceased partner would have wished to donate the embryos to medical research (although there was obviously no evidence to the contrary either), the Court concluded that the ban in question had been “necessary in a democratic society”.

Factual background

In 2002 the applicant, Ms Parrillo, and her partner had recourse to assisted reproduction techniques and underwent IVF. Five embryos were obtained, and were stored by cryopreservation. Ms Parrillo’s partner died in November 2003, before the embryos could be implanted. After deciding not to go ahead with a pregnancy, she sought to donate them to scientific research.  However, Italian law prohibits experiments on human embryos, even for the purposes of scientific research, making any such experiment punishable by a sentence of between two and six years’ imprisonment. Ms Parrillo’s requests for the release of her embryos for this purpose were therefore refused.

She submitted that the embryos in question had been obtained before Law no. 40/2004 entered into force and considered, in consequence, that it had been entirely legal for her to have them preserved rather than proceeding with immediate implantation.

Arguments before the Court

Under Article 1 of Protocol No. 1 (protection of property), Ms Parrillo complained that she was unable to donate her embryos, conceived through medically assisted reproduction, to scientific research and was obliged to keep them in a state of cryopreservation until their death. Ms Parrillo also considered that the prohibition in question amounted to a violation of her right to respect for her private life, protected by Article 8.

Amongst the interveners in this case were the European Center for Law and Justice (“the ECLJ”), the associations Movimento per la vita, Scienza e vita, Forum delle associazioni familiar, and  SIFES – Society of Fertility, Sterility and Reproductive Medicine and Cittadinanzattiva, as well as 46 members of the Italian Parliament.

The Grand Chamber’s deliberations

Article 8 (right to respect for private life)

For the first time, the Court was called upon to rule on the question whether the “right to respect for private life” could encompass the right to make use of embryos obtained from IVF for the purposes of donating them to scientific research. The “family life” aspect of Article 8 was not in issue here, since Ms Parrillo had chosen not to go ahead with a pregnancy with the embryos in question. The Court, noting that the embryos obtained through IVF contained the genetic material of the person in question and accordingly represented a constituent part of his or her identity, concluded that Ms Parrillo’s ability to exercise a choice regarding the fate of her embryos concerned an intimate aspect of her personal life and accordingly related to her right to self-determination. The Court also took into account the importance attached by the domestic legal system to the freedom of choice of parents regarding the fate of embryos not destined for implantation. It therefore concluded that Article 8 was applicable in this case.

On the legitimacy of the aim pursued by the interference in Ms Parrillo’s private life, however, different considerations came into play.  According to the Government, this interference, provided for in Law no. 40/2004, pursued the aim of protecting the “embryo’s potential for life”, as the human embryo is considered in the Italian legal system as a subject of law entitled to the respect due to human dignity.

The Court considered that Italy was to be afforded a wide margin of appreciation in a case which raised sensitive moral and ethical issues. In addition, it did not concern prospective parenthood, and the right invoked by Ms Parrillo was not one of the core rights protected by Article 8, as it did not concern a crucial aspect of her existence and identity. This need for a wide margin of appreciation was confirmed, firstly, by the lack of a European consensus on this subject and, secondly, by the international texts. Although certain member States had adopted a permissive approach in this area (17 countries out of 41), others had chosen to prohibit it (Andorra, Latvia, Croatia and Malta) or to impose strict conditions on research using embryonic cells (for example, Slovakia, Germany, Austria or Italy).

With regard to the Italian legislation on this matter, the Court noted, firstly, that the drafting of Law no. 40/2004 had given rise to considerable discussions and that the Italian legislature had taken account of the State’s interest in protecting the embryo and that of the persons concerned in exercising their right to individual self-determination, and, secondly, that the inconsistencies in Italian law alleged by Ms Parrillo – on account, she submitted, of the right to abortion in Italy and the use by Italian researchers of embryonic cell lines taken from embryos that had been destroyed abroad – did not directly affect the right invoked by her.

Lastly, the Court noted that there was no evidence that Ms Parrillo’s deceased partner, who had had the same interest in the embryos in question as the applicant at the time of the IVF, would have wished to give the embryos to science. Moreover, there were no regulations governing this situation in Italy. The Court concluded that Italy had not overstepped the wide margin of appreciation enjoyed by it in this case and that the ban in question had been “necessary in a democratic society”. In consequence, there had been no violation of Article 8.

Other Articles

The Court considered that it was not necessary to examine the sensitive and controversial question of the status of the human embryo in vitro and when human life begins, given that Article 2 (right to life) was not in issue in this case. With regard to Article 1 of Protocol No. 1 (protection of property), the Court considered that it did not apply to the present case, since human embryos could not be reduced to “possessions” within the meaning of that provision. This complaint was accordingly dismissed.

Comment

Most of the separate opinions agree with the opinion of the majority. Those that do not – from Judges Casadevall (Andorra), Raimondi (Italy), Berro, Nicolaou (Cyprus) and Dedov (Russian Federation) – object to the majority’s finding that Ms Parrillo’s complaint even engaged Article 8. Her embryos should be considered separately from her right to autonomy. They did not like what they saw as a dangerous precedent set by the Court in recognising a woman’s right to “decide the fate” of [her] embryos as part of an individual’s right to respect for private life.

this judgment marks as a critical turning point in the Court’s jurisprudence. It makes a far-reaching and, in our view, an unacceptable pronouncement on the status of the human embryo.

… to find that the embryo is ‘a constituent part’ of the applicant’s identity is a far-reaching finding indeed. Unlike the majority, we do not consider that embryos can be reduced to constituent parts of anyone else’s identity—biological or otherwise.

This, they say, is “muddled reasoning”:

Whilst sharing the genetic make-up of its biological ‘parents’, an embryo is, at the same time, a separate and distinct entity albeit at the very earliest stages of human development.

Judge Sajó’s dissent and the scientific view

Diametrically opposed to the reasoning of the majority and these separate opinions is the annexed opinion of Judge Sajó, the significance of which risks being missed as it comes right at the end of a very long judgment. He is completely taken aback at his colleague’s refusal to uphold the applicant’s right under Article 8 to make autonomous decisions regarding her own and her partner’s genetic material. This decision, he says,

not only “relates” to the right of self-determination but is an exercise of that right, which is the crux of the right to private life. The applicant’s right to self-determination reflects her right to personal autonomy and freedom of choice (see S.H. and Others v. Austria [GC], no. 57813/00, § 80, ECHR 2011; McDonald v. the United Kingdom, no. 4241/12, §§ 46-47, 20 May 2014; and Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002‑III). Here, the applicant’s choice (a right) was to donate her embryos to the advancement of life-saving science rather than allow them to lose viability over time. The nature of the right at stake in this case is the applicant’s freedom of choice. This case is not about the rights of parenthood or even the possible rights of a foetus; the applicant’s right here is to act as a free and autonomous individual with regard to her genetic footprint.

This does not imply, Judge Sajó is careful to add, that the cells at issue are a part of her “biological identity” as the judgment describes it, but rather that the applicant has a right to primary control over her genetic contribution to the future, whether in the form of children, or scientific advancement in finding new cures and treatments for human disease. Of course an embryo (in abstract – not these embryos) would have the potential to develop into a human being, but this remains merely a potential as it cannot happen without the consent of the donor(s), as discussed in Evans v. the United Kingdom [GC], no. 6339/05, ECHR 2007‑I.

Nor was this restriction on her choice “in accordance with the law” as required by Article 8(2). At the time of her partner’s death, the law banning the use of surplus embryos in scientific research had not been introduced. The applicant was facing a situation in which she had no real choice but to see her embryos being stored in cryopreservation indefinitely by the State. This had not been foreseeable when she chose to undergo IVF. As Judge Sajó points out,

She could not possibly have known that she would have only four months after the death of her partner to decide what to do with the embryos before that decision was removed from her control by the new legislation. It is noteworthy that the law does not contain any specific rule as to the fate of embryos which were being cryopreserved before the entry into force of that law.

In the absence of any justification by the Government for the aim of the interference, the majority supplied two possible justifications: the protection of morals and the protection of the rights of others. In his opinion, Judge Sajó picks holes in this too.

As to the protection of morals, the Court does not provide information about public morals in Italy, where the impugned practice was legal for many years. The Government did not refer to the protection of morals and the Court does not explain where the moral interest lies; nor does it take into consideration any specific moral interest in the proportionality analysis.

The Court cannot have it both ways. The fact that embryos do not fall into the category of possessions does not transform embryos into human beings or into rights-holders. The fact that there is a State interest in protecting potential life cannot be equated with a right of a person. Organs, for example, are not treated as pure possessions, but that does not confer on them the status of “human being”. The legal status of biological material is not obvious and must be clarified before any assumptions can be made about rights.

In Italian legal theory a “subject” is a point of reference for legal relations, not a person. All persons are subjects but not all subjects are persons (“Ogni persona è soggetto, non ogni soggetto è persona”)

He expresses his fear that “we face a risk here of loosening the standard applicable to the list of permissible aims for the restriction of rights”. So far, the Court has consistently held that the list of exceptions to the individual’s Convention rights is exhaustive and that their definition is restrictive. But in this case, there is a manifest failure to undertake a serious scrutiny of a State’s purported aim in imposing the restriction in hand. This, in Judge Sajó’s view, will undermine the rights-protective potential of any proportionality analysis.

If we wish to apply the margin of appreciation doctrine, we could say that in matters of economic policy there is little scope for such an analysis, given the cognitive advantage the national legislation or national authorities enjoy or that “[b]ecause of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is ‘in the public interest’” (see James and Others v. the United Kingdom, no. 9793/79, § 46, 21 February 1986). This reasoning cannot be applied without additional and convincing reasons to areas where the issue is not the general “public interest” in economic or social policies but morals, health policy or science.

In essence, this important dissenting opinion points out the inconsistencies in the Court’s approach to justifications advanced by governments for this or that interference with rights. When the government’s objectives are subject to dispute, (as is the case in the present context, see paragraphs 135‑37 of the judgment), the Court should, and usually does, undertake a thorough examination of the link between the measure and the objective.

In the present case, the link was taken for granted without any enquiry being made of, or justification sought from, the Government.

The judgment of the Grand Chamber, he says, stands in stark contrast “to the clearly articulated moral interest presented by the applicant, and the strong social interest in the scientific research at stake, which lends considerable weight to the otherwise “not particularly important right” of the applicant.

the majority simply observe that the Italian legislature carried out a thorough examination of this issue prior to drafting the 2004 Law (see paragraph 184). As mentioned above, the conditions required in that regard by Hatton and Others and Animal Defenders International  are not satisfied. In the absence of clear reasons arising from the parliamentary debate, it is only when the Government provide sufficient clarity that the Court can properly inquire into why the blanket ban on donation is necessary when weighed against the applicant’s personal choice. The Court’s citation from the preparatory works does not explain why a ban on donation is necessary for Italy’s purported moral preference in favour of embryos in the circumstances of the present case. Since the Government cannot force a person to use her embryos to create a human being without her consent, a blanket ban on all other life-promoting uses (such as medical research) is not only overly restrictive of the individual’s freedom of self-determination, it also disregards the constitutional values recognised in Article 33 of the Italian Constitution and the value system of the Convention, which recognises the Article 10 interest in scientific research (see Mustafa Erdoğan and Others v. Turkey, nos. 346/04 and 39779/04, §§ 40-41, 27 May 2014). More importantly, the protection of life cannot be relied on, not only because the meaning and weight of that argument remain contested in regard to the applicant’s embryos but also because those embryos, notwithstanding their potential for life, have no chance of becoming human beings. As to embryos in general in Italy, the duty to protect the potential of the non-viable embryo cannot exist in absolute form in Italian law given that even a viable foetus can be aborted.

The position in Italian law is ill thought out and wasteful. For the applicant, it was poignant indeed, since she was faced with an “impossible and unforeseeable choice:

At best, the choices open to her were to use the embryos herself, or allow another couple to use them, or to let her biological material languish indefinitely until such (unknown and unknowable) time as the embryos lost viability or could be used for a procreative purpose contrary to her clearly expressed wishes.

…The law disregards the interest in preventing actual human suffering through scientific research in the name of the protection of a potential for life which, moreover, cannot ever materialise in the circumstances of the case. I cannot see why preponderant weight is attached to the potential for life when Italian law does allow the abortion of a viable foetus, and in the particular circumstances of the present case where, in the absence of the consent of the applicant, that potential cannot materialise. This attitude and the related explanation are not only inconsistent but plainly irrational and as such cannot be sufficient justification for the proportionality of the measure.

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