Eugenics, as a Human Right, warsaw, 24 september 2012

The European Court of Human Rights was  established in principle as the main instrument for implementing a particular Convention and protector of human rights. This Court has  spoken  out against Italy with a very brief statement of basis at the request of two residents in this State: Rosetta Costa and M. Walter Pavan. Both were carriers of a genetic disease and both wanted access to a medically assisted procreation in order to prevent the transmission of a genetic disease by preimplantation embryo selection.

The Italian law 40, known as Assisted Reproduction Law, prohibits eugenic practices, in particular embryo selection. The European Court of Human Rights noticed a contradiction between the law 40 and Law 194 which allows therapeutic abortion. In fact the couple had previously agreed to an abortion based on this justification. They did so after the fetus being diagnosed the disease through prenatal diagnosis, currently the most widespread instrument to prevent birth (in fact, an euphemism to kill handicapped). The Court Based his judgement  on the contradiction found in the italian legislation. This contradiction  was  a violation of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which states that everyone has the right to protection of privacy and family. It seems that in principle this article has nothing to do strictly with the application of limits on embryo selection in IVF, and in fact the Court had ruled so, considering that the prohibition of heterologous fertilization called by Austria did not limit the personal or family life. Indeed at that time still the Grand Chamber accepted that the interference of Article 8 does not refer exclusively to a negative duty of the State but also implies a positive duty to promote that life, insisting that the aim is not to replace the Court margin own appreciation of States in the legislation of assisted fertilization.

I will read a few paragraphs that seem to be relevant and have not been taken into consideration in Judgment Costa & Pavan:

“The Court reiterates that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State when deciding any case under Article 8 of the Convention. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted (see Evans, cited above, § 77 and the cases cited therein). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see Evans, cited above, § 77; X., Y. and Z. v. the United Kingdom, cited above, § 44; Frette v. France, no. 36515/97, § 41, ECHR 2002-I; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 85, ECHR 2002‑VI; and A. B. and C. v. Ireland, cited above, § 232). By reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than the international judge to give an opinion, not only on the “exact content of the requirements of morals” in their country, but also on the necessity of a restriction intended to meet them (see A. B. and C. v. Ireland, ibid., with further references). There will usually be a wide margin of appreciation accorded if the State is required to strike a balance between competing private and public interests or Convention rights (see Evans, cited above, § 77, and Dickson, cited above, § 78).

95.  In that connection the Court observes that, according to the study “Medically-assisted Procreation and the Protection of the Human Embryo Comparative Study on the Situation in 39 States” compiled by the Council of Europe in 1998 on the basis of replies by the member States of the Council of Europe to the Steering Committee on Bioethics, ovum donation was expressly prohibited in Austria, Germany, Ireland, Norway, Slovakia, Slovenia, Sweden and Switzerland and sperm donation in Austria, Germany, Ireland, Norway, and Sweden. At present sperm donation is prohibited, in addition to Austria, in only three countries: Italy, Lithuania and Turkey, while ovum donation is prohibited in these countries and in Croatia, Germany, Norway and Switzerland. However, legislation in that field, if it exists at all, varies considerably. While medically assisted procreation is regulated in detail in some countries, it is regulated only to a certain extent in others and in some other countries not at all.

96.  The Court would conclude that there is now a clear trend in the legislation of the Contracting States towards allowing gamete donation for the purpose of in vitro fertilization, which reflects an emerging European consensus. That emerging consensus is not, however, based on settled and long-standing principles established in the law of the member States but rather reflects a stage of development within a particularly dynamic field of law and does not decisively narrow the margin of appreciation of the State.”

In a remarkable turnaround versus the decision of the Grand Chamber in the above cited case  now it is accepted that limiting the rate of IPR to protect the embryo  is disproportionate and represents an interference with personal life, as well as limits the degree of freedom for signatory States in the regulation of IVF.

The thesis that we hold is that it is a kind of reconstruction of the Roe American judgment and The Court ) illegitimately imposes eugenic practice at European level based on personal and family life respect (a right that is built similar to the U.S. privacy)

Eugenics and human rights.

Originally eugenics is a science that, really, is presented as a policy linked to social Darwinism. It appears in this sense in the work of Francis Galton.  The objective is to keep the struggle for survival in the human context, in order to prevent the jump from natural selection to eliminate the social advantages thereof. That is, it is a unique way to keep the supposedly natural advantages with artificial means. Eventually it is no more than the old prejudices regarding the responsibility of the poor disguised with so called scientific thesis.

The concern of eugenics was always to improve mankind through the application of science. This happens  both in its negative aspects (selection by elimination of the defective) as well as in its positive ones (selection of the fittest for reproduction, or when this was made possible, of those who were considered to have positive features).

Net, we are in the path of the gnostic project, as it was reported by Voegelin and then commented by Gómez Dávila (although the latter was certainly eugenicist). However, as regards the legal creation the Bogotian could not be more successful. "The first revolution started when a fool thought that the Law could be invented" (Escolios a un texto implícito, Atalanta, 510)

The methods of eugenics were first deprived from reproductive capacity to those who were considered unfit to hold the panacea eugenics, the famous society genetic heritage. This limitation was racially motivated or based on pseudoscientific observations, such as the consideration of the inheritance of certain moral defects.  Even very respectable courts, creators of especially relevant Jurisprudence for individual and social rights protection, as the U.S. Supreme Court, sentenced in an openly eugenicist way, starring like Oliver Holmes, as he said in the case Buck v. BELL, 274 U.S. 200 (1927) 274 U.S. 200:

“It is better for the whole world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. . Three generations of imbeciles are enough. [274 U.S. 200, 208]”

The eugenic point of view was social, for this reason the second method in countries of immigration was the selection of immigrants for alleged eugenic reasons. This  resulted, as is known in clear racist immigration laws, also at the same time in the United States. Thus the law signed by President Coolidge 

However, the field of abortion was  the field where probably eugenics was more clearly linked to a more social prejudice-based. Here, the thesis followed a tailored Malthusianism principle, which considered that higher reproductive propensity from lower classes was negatively affecting genetic heritage. Spreading abortion among women of this social class was therefore an eugenics objective per se, hence the support of eugenics movements to legalize abortion as quoted by Anne Farmer, in his indispensable book "By Their Fruits. Eugenics, population control and the abortion campaign".

Interestingly, abortion was restricted to racially healthy population whatever their social status in countries where racial prejudice persisted over the social one, and ethnic groups fostered in "sick", "lower" or "parasites", by following some of the terminology of the time.

Obviously eugenics rediscovers its "pre-scientific" roots in infanticide and euthanasia.

This brief introduction is intended to recall that eugenics is the foundation of some of the biggest attacks to human rights, attacks that led to the emergence of the Council of Europe Human Right system of guarantees, through first, the European Convention and then, the European Court of Human Rights.

It is in this context that we must analyze the alleged scandal that the European Court sanctions  Itsaly for having limited in  the Law 40, the most aggressive eugenic practice as it is PGD linked to fertilization "in vitro".

The serious contradiction in European legislation.

This paradox is particularly acute, given that the majority of European states, which belong to both the European Union and the Council of Europe, are exposed in the same year to an embryo protective jurisprudence, in the famous sentence Brüstle / Greenpeace from the of Court of Justice, together with an aggressive jurisprudence on the same topic, in the Costa-Pavan Judgment Against Italy by the European Court of Human Rights, which certainly establishes de facto and provisionally compulsory eugenic option in assisted reproduction laws.

Hence, it is impossible to forget the most important data regarding the embryo valuation in the European Union law.

In this ruling and application of Directive 98/44 EC on the legal protection of biotechnological inventions, the Court of Justice of the European Union has had occasion in Case c-34/10 Oliver Brüstle / Greenpeace, 18 October 2011 to resolve a matter referred by the German Supreme Court on the scope of the exclusion from patentability by the human body, in all stages of its formation and development including germinal cells, and the simple discovery of one its elements or one of its products, including the sequence or partial sequence of a human gene, are not patentable. For this purpose the Court defines a “non-patentable embryo concept, common to all European countries. It is a broad concept of embryo, that only for that purpose, differs from the prevailing interpretation in British or Spanish legislation, and comes closer to the current concept in German law.

The reasons to support developing embryo protective legislation are evident in such a forum as this one. It is worth to remark that this legislation imposes progressively at European level and that it is in that progressive phenomenon that there are some contradictions to be resolved in the direction of promoting the embryo protection.

Recently Justo Aznar has stressed the relationship between biological and legal status of the human embryo. The Foundation of its human rights, must be built upon its biological reality. The claim that we have to justify is that the early embryo is a living human being of our species, a human individual, and not a lump of cells without any biological structure.

Some of the arguments to support our view are:

1 Genetic identity of the embryo: The genome of the zygote already contains all the genetic information necessary for that new being to develop fully until its status as a living adult being. As Justo Aznar states, the genetic identity of the new individual and its membership to a particular species has already been determined in the embryo. The evolution of that being is a continuous biological process resulting in the different realities of its development, within the life, until that identifies it as a living human being, from the fertilisation of the egg by the sperm until its natural death. However there are many biological arguments to support that a human individual is something more than its genetic code. We have now a lot more information about non-genetic mechanisms than significantly influence embryo development. Any phenotype expression of a living being is the result of the gene content of its genome and the epigenetic information that is generated throughout its evolution, as a fundamental consequence of the interaction of the genome with its environment.

There are other biological mechanisms which support the position that the early human embryo cannot be considered as a merely lump of cells, but as an organised living being: These include:

Mechanisms that regulate the emission of the embryo development program.

The so-called position information.

The role placed by a fusion of the cell membranes of both gametes in starting up the embryo development process and the determination of the asymmetry and polarity of the zygote.

Various biochemical factors, mainly the intra and extracellular calcium levels, which can directly influence embryo development.

The genetic regulation of the cell differentiation mechanisms.

The biochemical dialogue established  between the embryo  and its mother, during its time in the Fallopian tube.

Finally the inhibition of the mother’s immune response.

Implantation diagnosis, prenatal diagnosis and eugenic abortion.

The eugenic route in assisted reproduction laws first appears linked to preimplantation diagnosis, then to prenatal diagnosis and finally the so-called eugenic abortion.

I think it is worth highlighting some aspects regarding eugenic abortion that could be useful when analyzing the Pavan and Coast.

The extent of eugenic indication in the Eighties developed in a less obscene period than today’s. In the German jurisprudence, for example, and in a way, also in Spanish one, the goal of selecting the healthy child and the subsequent destruction of the defective one, is concealed under the doctrine of criminal conduct required there be no other. That is, it is burdensome to impose a penalty on a person beset to certain behavior, given the seriousness of the situation to him revealed through prenatal diagnosis. No penalty, but also, no right to abortion. What is more, it seems to be excluded (in theory) but not in practice. This was of particular concern to the German Constitutional Court: a eugenic policy. In other words, the eugenics exception was not so much the right to prepare or access to a child without flaws but the benefit of granting no penalty to a behavior on which the order has a clear position.

The context of the debate on the legal status of the embryo

Another issue that can’t be disregarded when analyzing prenatal life protecting legislation is the inconsistency in which laws are being submerged due to the presence of several factors whose ignorance can cause harmful effects. Indeed if ignored by courts complex reality of architecture around life protection the effect could be partial, noting inconsistencies where only legal developments or increased protection at points where it has attained a legislative outcome. This problem is much more important and even more relevant when these international courts are subsidiary with a performance of state bodies and courts strictly bound by an international treaty, so that the effectiveness of their performance statement requires a Committee of Ministers.

Indeed in the legal status of the embryo various situations might be considered (which could be referred to as rights in tension)

The first one is how can abortion not be ignored, when considered as a controversial question about its penalty, with what were called “indications“ playing in many countries in a certain way, as in Spain, jeopardizing the value of unborn life and certain options hard or difficult to handle by the mother. When the solution was to set up deadlines, as in Italian law, the apparent total lack of protection was justified only around the issue of abortion, which does not mean that in any case the embryo becomes unprotected: It is unprotected against this aggressive action from his mother, justified in several ways.

Another one could be the sadist abortion, the position of absolute availability, somewhat established in Roe v Wade, with nuances, which indeed could be interpreted as a total loss of rights of the individual in a prenatal phase versus the absolute will of his mother of not have a son, or in a different context to have a children under certain conditions, or to have a son and not a daughter, and so on.

Contentious elements of the judgment. Hyperactivity court.

As Bernard Nathanson once said, the U.S. Supreme Court's activism has led to a major conflict, which includes constitutional aspects, by affecting the power of states in criminal matters and by developing a maximalist concept of privacy that from sexuality (that is at least my debatable interpretation) obfuscates the right to life or at least the consideration of a right to prenatal life. Certainly there is no shortage of initiatives that claim to solve the problem by defining a legislative resolution prenatal life frontally against the "prohibition of the question" that established the Supreme Corut .

But the political problem is that Roe v vade remedy prevents normal judicial solution through the State legislative construction and public debate, by establishing a maximalist solution which is also against the original meaning of the Constitution.

There is nothing closer to this that the action made by the EHRT. It plays again with the privacy, it builds again a right that didn’t exist before, it ignores again treaties that are the reason of being of the court itself, by preventing normal public debate as the one that occurred in Italy in Act 40.

No one knows who authorized the EHRT in its provisional decision to skip all the complex debate on Law 40, playing the creative jurisprudence, and solving the political controversy in a sense, with the strength of their own convictions and using such absurd arguments (which we will analyze later on), such as just taking intro consideration just what is reflected in most European legislation.

But, as it has been rightly pointed out by some of the intervenient parties, the court has had to override the basic principle of the exhaustion of his performance of the national body, which clearly reveals the direction of its activism.

In fact, the couple had not challenged any Italian court to get their alleged right to protection of the European Court of Human Rights and the EHRT excuse about lack of internal action is not convincing, given that the Italian courts had already intervened in similar issues. In short, the European Court intervenes, apparently breaking its previous jurisprudence on restrictions on IVF and not considering the objection of the Italian Government.

Indeed as stated in its submissions the European Center for Law and Justice:

“The applicant neither can claim to have been affected in any Convention right nor have they initiated any action against the Italian judicial authorities: They just claim they wanted to have a child after a PID and this wish was denied by the Italian State. It certainly seems that the protection system of the European Court of Human Rights concerning national rights as subsidiary versus the national states is abandoned.”

The inconsistency between the two Italian rules that allow eugenic abortion but not eugenic selection of embryos results in a disproportionate suffering in the limitation according to the law. A disproportion that justifies the "intrusion" of the court.

As noted by Frank Cranmer:

“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.