Human Embryos, the beginning of life, and EU Citizens

On 24 December 2012, the “One of Us” campaign issued the following Press Release

“One of Us” is one of the first registered ECIs [European Citizens’ Initiatives]  in the European Union. It’s (sic) goal is to greatly advance the protection of human life from conception in Europe – within the possibilities of the competency of the EU. Based on the definition of the human embryo as the beginning of the development of the human being, which was given in a recent ECJ judgment (Brüstle v Greenpeace), “One of Us” asks the EU to end the financing of activities which presuppose the destruction of human embryos, in particular in the areas of research, development aid and public health.

This will be done through a change of the financial regulation of the EU that determines the spending of the EU budget. A ban of such funding will greatly contribute to the consistency within the EU”.

The initiative gained papal support from Benedict XVI through his comments following the praying of the Angelus on 4 February 2013, in which he said

“I join with all the Italian bishops whose messages invite us to invest in life and in the family as an effective answer to the current crisis. I greet the Movement for Life and wish them success in their initiative called “One of Us”, to make Europe more and more a place in which the dignity of each human being is protected. I also greet the representatives of the Faculty of Medicine from the University of Rome, particularly the professors of obstetrics and gynaecology … and encourage them to train health care workers in the culture of life.”

The “One of Us” campaign is currently seeking the 1 million signature required by the European Citizens’ Initiative, through its web site.

Comment

In an earlier post we noted that under present law in England and Wales, and in the EU, a human foetus has no legal personality, the decision in Paton v Trustees of the BPAS having been affirmed in: Re F (in utero) [1988] Fam. 122; Burton v Islington HA [1993] QB 204; Attorney General’s Reference (No. 3 of 1994) [1998] AC 245l, and more recently at the European Court of Human Rights in Evans v The United Kingdom [2007] EctHR (GC)(No. 6339/05); and Vo v France [2004] ECtHR (GC) (No. 53924/00).

The case in the Court of Justice underpinning the “One-of-Us” initiative – Oliver Brüstle v Greenpeace e.V [2011] case c-34/10 – concerned the interpretation of Article 6(2)(c) of Directive 98/44/EC on the legal protection (i.e. patentability) of biotechnological inventions.  Article 6 of the Directive states:

1. Inventions shall be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality; however, exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation.

2. On the basis of paragraph 1, the following, in particular, shall be considered unpatentable: (a) processes for cloning human beings; (b) processes for modifying the germ line genetic identity of human beings; (c) uses of human embryos for industrial or commercial purposes.

Although the court restricted its deliberations as follows:

“As regards the meaning to be given to the concept of ‘human embryo’ set out in Article 6(2)(c) of the Directive, it should be pointed out that, although, the definition of human embryo is a very sensitive social issue in many Member States, marked by their multiple traditions and value systems, the Court is not called upon, by the present order for reference, to broach questions of a medical or ethical nature, but must restrict itself to a legal interpretation of the relevant provisions of the Directive (see, to that effect, Case C‑506/06 Mayr [2008] ECR I‑1017, paragraph 38),” [paragraph 30, emphasis added],

in the context of the ECI, its subsequent observations are important,

“Accordingly, any human ovum must, as soon as fertilised, be regarded as a ‘human embryo’ within the meaning and for the purposes of the application of Article 6(2)(c) of the Directive, since that fertilisation is such as to commence the process of development of a human being, [35].

That classification must also apply to a non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted and a non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis. Although those organisms have not, strictly speaking, been the object of fertilisation, due to the effect of the technique used to obtain them they are, as is apparent from the written observations presented to the Court, capable of commencing the process of development of a human being just as an embryo created by fertilisation of an ovum can do so, [36].

As regards stem cells obtained from a human embryo at the blastocyst stage, it is for the referring court to ascertain, in the light of scientific developments, whether they are capable of commencing the process of development of a human being and, therefore, are included within the concept of ‘human embryo’ within the meaning and for the purposes of the application of Article 6(2)(c) of the Directive, [37].”

The Court of Justice therefore clarifies:

  • the circumstances under which a human ovum falls within the definition of “human embryo” within the meaning of Article 6(2)(c) of the Directive in the context of patentable inventions;
  • that fertilization of the ovum “commences the process of development of a human being”.

However, it does not:

  • equate a fertilized human ovum with a human being;
  • suggest that a legal personality should be assigned to such a fertilized ovum.

Nevertheless, by seeking a ban on EU funding in this area of medical development, it circumvents the current legal issues associated with legal personality.  However, this would not prevent the occurrence of  such activity in the EU in cases where it is funded from non-Community sources, and its choice of action (the ECI) is new and as yet untried.

European Citizens Initiative, (ECI)[‡]

The ECI was introduced following the Treaty of Lisbon, and Under Article 11(4) of the Treaty on European Union (TEU) :

 “not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties” .

The procedures and conditions required for such a citizens’ initiative are to be determined in accordance with Article 24 TFEU, which states:

“The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, [i.e. Article 294 TFEU, formerly referred to as co-decision], shall adopt the provisions for the procedures and conditions required for a citizens’ initiative within the meaning of Article 11 of the Treaty on European Union, including the minimum number of Member States from which such citizens must come.”

There are two basic problems underlying the formulation in Article 11(4);

  • the disparity in the number of citizens within individual Member States, which vary from 410,000 in Malta to 82 million in Germany; and
  • the term “significant number” which is subjective but undefined.

After much discussion, this was eventually resolved through the use of a formula where minima required are based upon the number of MEPs in the Members State multiplied by 750, the results of which could be a parody of Leporello’s ‘Catalogue’ Aria, “Madamina, il catalogo è questo[§]These and other criteria were encompassed in Regulation (EU) 211/2011 which came into force on 1 April 2012.  The 14 open ECIs are listed here, and the deadline for the collection of the signatures for the four earliest, including One of Us, is 1 November 2013.



[‡] For a review of petitioning in the UK and EU, see: D N Pocklington, “Industry Soundings”, (2011) 23 ELM 21.

[§] IIn Italia seicento e quaranta, in Allmagna duecento e trentuna, cento in Francia, in Turchia novantuna, ma in Espagna son già mille e tre!

 

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