The European “Right” to a Healthy Child

by Paul Coleman

One of the great science fiction movies of modern times is Gattaca. More than being brilliantly shot, well-acted and supported by a moving soundtrack, the themes it explores are chillingly relevant for the times in which we live.

Set in “the not too distant future,” the movie portrays a world where child birth is not left to chance. Embryos are screened for any sort of genetic defect and only the best are selected for implantation and birth. The new generation of genetically superior human beings leads society to great technological advances and “progress,” but those humans born through the natural method—“God-children,” as they are called—are systematically discriminated against and are destined to fight through life as “invalids.”

While Gattaca focuses on the struggles faced by those born into the new world, one question that is deliberately avoided is what happens to the countless embryos which, for one reason or another, do not make the cut. The answer, of course, is that they are destroyed.

In a process known as pre-implantation genetic diagnosis, the “invalid” embryos are rejected, and the best are implanted. In a deleted scene, a prospective mother asks her doctor, “What will happen to the other [embryos]?” The doctor replies, “They are not babies … merely human possibilities, smaller than a grain of sand.”

Bridging the gap from fiction to reality is the recent case of Costa and Pavan v. Italy. In the case, the second section of the European Court of Human Rights unanimously held that Italy had violated Article 8 of the European Convention on Human Rights (the right to respect for private and family life), because it refused to allow embryo screening—a decision that the Italian government will certainly appeal to the Grand Chamber.

The case concerned an Italian couple, Rosetta Costa and Walter Pavan, who were healthy carriers of the genetic disease cystic fibrosis. Having already given birth to one child with cystic fibrosis and aborted a second child after discovering that it carried the disease, the couple wanted to guarantee, with the use of medically-assisted procreation and embryo screening, that any future children would not inherit the disease.

However, pre-implantation genetic diagnosis is unlawful under Italian law and so the couple brought their case to the European Court of Human Rights.

Considering these issues for the first time, the Court remarkably held that the applicants’ desire to use medically-assisted procreation and pre-implantation genetic diagnosis in order to have a healthy child was a form of expression of their private and family life that fell within the scope of Article 8 of the Convention. Accordingly, the Italian prohibition on embryo screening constituted an “interference” with the applicants’ “human rights” and under Convention law, any interference with Article 8 is unlawful unless the respondent government can justify it.

The Italian government sought to justify its interference with the applicants’ newly formed “right” based on the need to protect the health of the child and the woman, the need to protect the dignity and freedom of conscience of medical professionals and the importance of avoiding the risk of eugenics.

All of these arguments were rejected by the Court, principally because of the inconsistency of the Italian law.

The Italian legislation allowed Ms. Costa to become pregnant, have a screening, and then terminate her pregnancy if the baby had cystic fibrosis. Indeed, Ms. Costa went through this exact process in 2010. The Court therefore held that if the national authorities allowed a foetus to be terminated because it had cystic fibrosis, then there is no logical basis for prohibiting an embryo from being destroyed because it has the same disease.

As the Court put it: “It is clear that the Italian legislative system in this area is inconsistent. On the one hand, it does not allow limiting the implantation of embryos to those not affected by the disease … on the other hand, it allows them to abort a foetus affected by the same disease.” This inconsistency undermined Italy’s arguments as to why the ban on embryo selection was “necessary in a democratic society” and the Court unanimously held that Article 8 had been violated.

However, while there were clearly inconsistencies in the Italian legislation, and the Court was at liberty to point them out, the crux of the case was undoubtedly the Court’s holding that a parents’ desire to have a healthy child falls within the scope of the right to family life, and that a national prohibition on embryo screening is therefore an interference with that right.

Thus, although the Court argued that its decision was narrow and fact-specific and in no way created a “right” to a healthy child, its reasoning said otherwise.  Indeed the decision of the Court effectively means that parents who are not assisted in producing a healthy child are now considered “victims” under the Convention, and the state must prove to the Court why no assistance was provided. A de facto “right” to a healthy child has therefore been adopted by the Court and, if left to stand, it will have wider ramifications than the narrow facts of the case. The world of Gattaca has become one step closer.


Paul Coleman is legal counsel with Alliance Defending Freedom in Vienna, Austria, where he specializes in international litigation with a focus on European law.

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