The Case of Costa and Pavan v. Italy and the Convergence between Human Rights and Biotechnologies. Commentary on the ECHR Ruling in Costa and Pavan v. Italy, No. 54270/10, 28th August 2012

Abstract

In the judgment Costa and Pavan v. Italy of 28th August 2012, No. 54270/10, the European Court of Human Rights (the Court) ruled that, by forbidding the recourse of couples carrying a genetic defect to medically assisted procreation and preimplantation screening, whilst simultaneously permitting abortion in cases where the foetus was suffering from such an illness, Italy had, due to this alleged inconsistency, violated Article 8 of the Convention – which guarantees the right to the respect of private and family life. Furthermore, it demonstrates the increasing willingness of the Court to limit the margin of appreciation the States possess in legislative matters, including in the most ethically controversial areas. This decision constitutes an important step in the recognition of a true right to a genetically healthy child; that is to say to eugenics; that the Court calls the “right [of the applicants] to bring a child into the world who is not affected by the illness that they carry” (§ 65).

Keywords: ECHR, bioethics, eugenics, human rights, right to have a child, preimplantation genetic diagnosis, medically assisted procreation

JEL Classification: H00, K32 , K33