The recent history of the European Court of Human Rights (ECtHR) is so rich in absurd manifestations of judicial activism that one always has to expect the worst. In that sense, we note with relief that in today’s Grand Chamber judgment in the case of Parillo vs. Italy the Court found with 16 – 1 votes that the applicant, a woman who had undergone fertility treatment in which five embryos were created in vitro, does not have a subjective right under Article 8 of the European Human Rights Convention to “donate” those embryos for research purposes. In other words, a law that prohibits the use of embryos for research purposes is not incompatible with the Convention. This time at least, the frivolous attempt to use human rights to undermine human rights has remained unsuccessful.
So, should we congratulate ourselves and say that the Court today has issued a wise decision?
Not quite. While of course it is good that the Court abstained from making a decision that in practice would have completely undermined the concept of human dignity, the judgment is nevertheless highly illustrative of the Court’s dangerously misguided views on the human rights it is there to protect. Even if the worst has been averted, it remains true that the greatest danger for human rights and human dignity in Europe is the ECtHR itself.
The facts of the case are quickly summarised: in 2002 the applicant and her partner underwent in vitro fertilisation treatment and five embryos were obtained. Folllowing her partner’s unexpected death in November 2003, the applicant wanted to donate the embryos created in vitro for scientific research and thus “contribute to researching treatment for diseases that are difficult to cure”. However, section 13 of Law no. 40 of 19 February 2004 prohibits experiments on human embryos, providing for a term of imprisonment ranging from two to six years in the event of a conviction.
The applicant based her complaint on Article 1 of the 1st Protocol to the Convention (right to property), thus in effect claiming that the five embryos were her private property which she could use, or dispose of, however she liked. In addition, she invoked Article 8 of the Convention (Right to respect of one’s private life), claiming that her use of the five embryos was a private matter in which the State was not allowed to interfere.
The obviously misguided notion that a human embryo could be a “possession” in the sense of Article 1 of the 1st Protocol was dismissed by the Court – but it nevertheless reveals the mindset upon which the applicant’s complaint was founded: embryos are “things” that can be “owned” and “used”.
Very regrettably, the Court’s examination of the case under Article 8 of the Convention reveals that a similar mindset prevails among a majority of Europe’s “human rights” judges. Incredibly, the Court views the case exclusively through the prism of the applicant’s “right to self-determination”, overlooking the fact that what the applicant really wanted to determine was the fate of five distinct and individual human beings. How can one seriously speak about “self-determination” when in reality one claims a right to determine the fate of others?
Ultimately, the Court’s reason for not finding a violation of Article 8 was that Italy, in adopting a ban on research on human embryos, acted within a legitimate margin of decision in an area where there was not yet a European consensus. But by implication this means that a law that endorses a woman’s property claims with regard to an embryo (and hence her right to “own”, “use”, “dispose of”, or “donate” a distinct human being as if it were a thing) might equally well fit within a Member State’s margin of discretion.
It is the tragedy of this Court that it examines cases only in the light of the (at times absurd) rights claims of applicants, but that it appears to completely lack a moral compass that would help it understand that not only the practice of “donating” embryos, but already the very fact of producing them in vitro, and to cryo-conserve them, is a blatant contradiction to human dignity. Indeed, as we have learned from the recently published undercover videos on Planned Parenthood, the “donation” of embryos is by no means a noble act of the donor, but it is an attempt to rationalize and embellish an intrinsically evil act that occurs beforehand, be it (as in the Planned Parenthood videos) an abortion, or (as in the Parillo case) the fabrication of a human being in vitro. The true human rights violation is not the non-respect for the mother’s alleged “right” to “donate” her offspring for what she believes to be a good purpose, but the very fact that a human being has been created in this way. But this appears to be an issue that the Court will never deal with, not least because the embryo has no possibility to file an application…
Thus, although the outcome is satisfactory, the majority’s reasoning is deeply flawed. We therefore direct our readers’ attention to the separate votes issued by judges Pinto de Albuquerque, Dedov, and (jointly) by judges Casadevall, Ziemele, Power-Forde, De Gaetano and Yudkivska, all of which make pretty strong and committed statements on the rights and dignity of the human embryo.