Article 3 - Right to integrity of the person
Key facts of the case:
1) The case originated in an application (no. 46470/11) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Ms Adelina Parrillo (“the applicant”), on 26 July 2011.
3) The applicant alleged, in particular, that the ban (under section 13 of Law no. 40 of 19 February 2004) on donating to scientific research embryos conceived through medically assisted reproduction was incompatible with her right to respect for her private life and her right to the peaceful enjoyment of her possessions guaranteed under Article 8 of the Convention and Article 1 of Protocol No. 1. She also complained of a violation of freedom of expression guaranteed under Article 10 of the Convention, of which scientific research was, in her submission, a fundamental aspect.
11) The applicant was born in 1954 and lives in Rome.
12) In 2002 she had recourse to assisted reproduction techniques, undergoing in vitro fertilisation (“IVF”) treatment with her partner at the Centre for reproductive medicine at the European Hospital (“the centre”) in Rome. The five embryos obtained from the IVF treatment were placed in cryopreservation.
13) Before the embryos could be implanted the applicant’s partner died, on 12 November 2003, in a bomb attack in Nasiriya (Irak) while he was reporting on the war.
14) After deciding not to have the embryos implanted, the applicant sought to donate them to scientific research and thus contribute to promoting advances in treatment for diseases that are difficult to cure.
15) According to the information provided at the hearing before the Grand Chamber, the applicant made a number of unsuccessful verbal requests for release of the embryos at the centre where they were being stored.
16) In a letter of 14 December 2011 the applicant asked the director of the centre to release the five cryopreserved embryos so that they could be used for stem-cell research. The director refused to comply with her request on the grounds that this type of research was banned and punishable as a criminal offence in Italy under section 13 of Law no. 40 of 19 February 2004 (“Law no. 40/2004”).
17) The embryos in question are currently stored in the cryogenic storage bank at the centre where the IVF treatment was carried out.
Outcome of the case:
For these reasons, the Court
Paragraphs referring to the EU Charter in the concurring Opinion of Judge Pinto de Albuquerque:
24) (...) Secondly, the ratification of the Oviedo Convention and its Protocols by a large number of States is a strong indication that a growing European consensus has been built around the provisions of this Convention and its Protocols. This consensus is strengthened by the above-mentioned Resolutions and PACE Recommendations, the Charter of Fundamental Rights of the European Union and its additional legislative and jurisprudential framework, namely, Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 and the crucial Oliver Brüstle judgment, which all reflect the worldwide trend of international law towards acknowledging legal protection of the human embryo. In the light of all these materials, if a margin of appreciation is to be afforded to member States of the Council of Europe on issues related to a human being’s existence and identity, and particularly scientific research on the human embryo, that margin should be a narrow one.