The issue

Italian Law no. 40/2004 of 19 February 2004, which makes experiments on human embryos punishable by between two and six years’ imprisonment, prohibited Ms Parrillo from donating to scientific research embryos obtained from in vitro fertilisation that were not to be implanted in her: instead, she was obliged to keep them in a state of cryopreservation until their death. Her requests for the release of her embryos so that she could donate them for research were therefore refused.

She submitted that the embryos had been obtained before Law no. 40/2004 had come into force and, therefore, that it had been entirely legal for her to have them preserved rather than proceeding with immediate implantation. She complained that the ban on her donating them for research violated Article 1 of Protocol No 1 ECHR (protection of property) and Article 8 (private and family life). On 28 January 2014 the Chamber to which the case had been assigned relinquished jurisdiction in favour of the Grand Chamber.

The judgment

In Parrillo v Italy [2015] ECHR 755 the Grand Chamber held that Article 8 was applicable to Ms Parrillo’s complaint in its “private life” aspect because the embryos contained her genetic material and, accordingly, represented a constituent part of her identity: however, it held by sixteen votes to one (Sajó J dissenting)  that there had been no violation of Article 8 and, unanimously, declared inadmissible her complaint under A1P1. In doing so, however, it rejected unanimously the Italian Government’s contention that Ms Parrillo had failed to exhaust domestic remedies: it noted that the Italian system provided only for indirect application by individuals to the Constitutional Court and that it had not been shown, through established case-law and practice, that where the donation of embryos to research was concerned, an action by Ms Parrillo before the ordinary courts to raise the matter before the Constitutional Court in light of the Convention would have amounted to an effective remedy.

The Court considered that Italy was to be given a wide margin of appreciation on the matter [175, 180]. Law no. 40/2004 had been the subject of several referendums that had been declared invalid for failure to reach the required threshold of votes cast [187]. During the drafting process the legislature had already taken account of the different interests at stake, particularly the state’s interest in protecting the embryo and the interests of the persons concerned in exercising their right to individual self-determination by donating their embryos for research [188]. It was not necessary in this case to examine the sensitive and controversial question of when human life begins, because Article 2 (right to life) was not in issue [215].

The Court also noted that there was no evidence that Ms Parillo’s deceased partner would have wished to donate the embryos for medical research and concluded that the ban in question had been “necessary in a democratic society” within the meaning of Article 8 § 2 [196 & 197].

There had therefore been no violation of the Convention.

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Rosalind English has posted a long analysis of the  case on UKHRB: Woman’s wish to donate unwanted embryos to scientific research rejected by Strasbourg Court