Genetic disorders, embryo screening, private and family life and Article 8

An Italian couple found out that they were healthy carriers of the cystic fibrosis gene when their daughter was born with the disease in 2006. When the wife became pregnant again in February 2010 and was screened, they found that the foetus had cystic fibrosis and the pregnancy was terminated on medical grounds. The couple now want to have a child by IVF so that the embryo can be genetically screened prior to implantation – but Italian law prohibits this: see Law no. 40/2004 s 4 (1) and Ministry of Health Decree no. 31639 of 11 April 2008. The law does, however, allow IVF for sterile couples or those in which the man has a sexually transmissible disease such as HIV or hepatitis B and C, to avoid the risk of transmitting the infection.

In Costa and Pavan v Italy 54270/10 [2012] ECHR (28 August) [French text only] the couple complained that the only way in which they could have a healthy baby was to start a pregnancy by natural means and medically terminate it every time the foetus tested positive for cystic fibrosis – and that this was an interference with their rights under Article 8 ECHR (private and family life). They also contended that they were victims of discrimination, contrary to Article 14, when compared with sterile couples or those where the man had a sexually-transmissible disease. The Italian Government justified the interference by the need to protect the health of the mother and child and the dignity and freedom of conscience of the medical professions and to avoid the risk of eugenic abuses.

The Court considered that the applicants’ desire to use medically-assisted procreation to have a healthy baby was a form of expression of their private and family life that fell within the scope of Article 8. The fact that the domestic law did not allow them to do so was an interference with their rights under Article 8 which was certainly “in accordance with the law” and pursued the legitimate aims of protecting morals and the rights and freedoms of others.

However, the Court observed that the notions of “embryo” and “child” must not be confused; and it could not see how the medically-assisted abortion of a foetus with the disease could be reconciled with the Government’s justifications, given the consequences of an abortion both for the foetus and for the parents – particularly for the mother. The inconsistency in Italian law – prohibiting the implantation of only those embryos that were healthy but authorising the abortion of foetuses that showed symptoms of the disease – left the applicants only one choice: to start a pregnancy by natural means and terminate it if prenatal tests showed the foetus to have the disease. The resulting anxiety and suffering was a disproportionate interference with the applicants’ rights under Article 8. The Court considered and distinguished S.H. & Ors v Austria 57813/00 [2011] ECHR (GC) 1878 (3 November 2011), which was about access to donor insemination rather than assisted procreation using a couple’s own sperm and eggs.

As to the claim of discrimination under Article 14, however, it was rejected as manifestly ill-founded. So far as access to assisted procreation was concerned, couples in which the man was infected with a sexually-transmissible disease were not treated differently from the applicants because the general prohibition applied to everyone.

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