SECOND SECTION

DECISION

Application no . 46470/11 Adelina PARRILLO against Italy

The European Court of Human Rights (Second Section) , sitting on 28 May 2013 as a Chamber composed of:

Danuté Jociené , President ,

Guido Raimondi,

Peer Lorenzen ,

Dragoijub Popović , Işıl Karakaş ,

Nebojša Vučinić ,

Paulo Pinto de Albuquerque, judges , and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 26 July 2011 ,

Having regard to the decision to give priority to the application under Rule 41 of the Rules of Court ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Adelina Parrillo , is an Italian national, who was born in 1954 and lives in Rom e . She was represented before the Court by Mr Nicolò Paoletti and Ms Claudia Sartori , lawyer s practising in Rome .

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

In 2002 the applicant and her partner underwent in vitro fertilisation treatment . Five embryos were obtained using that method .

On 12 November 2003 the applicant ' s partner died .

The applicant wishes to donate the eggs created in vitro for scientific research and thus contribut e , by means of stem cells, to researching treatment for diseases that are difficult to cure .

However , section 13 of Law no. 40 of 19 February 2004 ( Law no. 40/2004, see “Relevant domestic law” below ) prohibits experiment s on human embryo s, even for scientific research purposes , and provides for a term of two to six years ' imprisonment in the event of a convictio n.

The applic ant submitted that the embryo s i n question had been created on a date prior to the entry into force of th at Law . Accordingly , it had been entirely lawful to store the embryos in cryopre serv ed form and not implant them immediately ( see section 14 of Law no. 40/2004).

B. Relevant domestic and European law

1. The Co uncil of Europe Convention on Human Rights and B iom edic ine ( “the Oviedo Convention ” ) of 4 April 1997

Article 18 – Re search on embryos in vitro

" Where the law allows research on embryos in vitro , it shall ensure adequate protection of the embryo.

The creation of human embryos for research purposes is prohibited. "

2. Law no. 40 of 19 February 2004 ( “ Rules on assisted reproducti on technology ”)

Section 13 – Experiment s on human embryos

“ 1. Any experiment on a human embryo is forbidden.

2. Clinical and experimental research on human embryos shall be authorised on condition that it is performed exclusive ly for th e rapeuti c or diagnosti c purposes with the aim of protecti ng the health and development of the embryo, and that a lternative method s are unavailable .

3. ...

4. Anyone who infringes the prohibition provided for in subsection 1 shall be liable to a term of imprisonment ranging from two to six years and to a fine of 50 , 000 to 150 , 000 euros. ...

5. Any health profession al convicted of one of the offences pr ovided for in this section shall be debarred from practi sing medicine for one to three years . ”

Section 14 - Limit s on application of technology to embryo s

“ 1. The c ryo pre servation or disposal of embryos is forbidden , without pr e judice to the provisions of Law no. 194 of 22 May 1978 [( rules on social protection of maternit y and voluntary termination of pregnancy )].

2. ...

3. Where the embryos cannot be implanted in to the ute rus for reasons of serious and proven force majeure affecting the state of health of the woman concerned which were unforeseeable at the time of fertilisation , cryo pre servation of the embryos shall be authorised until the date of transfer, which shall be effected as soon as possible. ”

3. Ministry of Health Decree of 11 April 2008 ( “Explanatory n otes on assisted reproducti on technology” )

“ ... Cryo pre servation of embryos : ... There are two cat e gories of embryo s amenable to cryo pre servation: the first is embryos that are awaiting future implan tation, including those that were frozen prior to the entry into force of Law no. 40 of 2004 ; the second is embryo s that have been certified as abandoned ... .”

4. By a decree of 25 June 2009 the Ministry of Health appointed a “ Study C ommission on embryo s stored in cryopreserved form in centres for assisted reproduction” . The following is a passage from the final report by that commission, adopt ed by a majorit y on 8 January 2010:

“The legal ban on disposing of embryo s is to be understood as prohibiting the interruption of cryo pre servation other than in two cas es : where the thawed embryo can be implanted in the ut e rus of the mother or other woman willing to have it implanted ; o r where natural death or permanent loss of vitality as an organism can be medically certified . In the light of current [ scientific ] knowledge , the continuing vitality of an embryo cannot be certified unless it has be en thawed , so we are faced with a paradox ical situation seeing that , once thawed , a n embryo cannot be frozen a second time and that , if it is not immediately im planted in to the uterus, death will inevitably ensue . Hence the tutiorist possib ility of frozen embryos being stored for an indeterminate period . I n any cas e , it should be note d that advances in scientific research will make it possible to determine the criteria and me thods for diagnos ing death , or in any event loss of vitality , of frozen embryos . It will thus be possible to overcome the present – and legally in e vitable – paradox of potentially indefinite cryo pre servation. Pending th o se r esult s, [i t should be reaffirmed that ] the explicit ban under section 14 of Law no. 40 of 2004 on disposing of embryo s, including therefore frozen embryos , cannot be ignored . That is not all, for as regards the fate of su rplus embryo s, the l e gislat or of Law no. 40 provided for their stor age a nd not their destr uction , thus establishing as a princip l e ( ratio ) that they should be ke pt alive even when their fate is un c ertain.”

5. By a judgmen t of 18 October 2011 (C-34/10 Oliver Brüstle v Greenpeace eV) delivered following a reference for a preliminary ruling from the German Federal Court of J ustice ( Bundesgerichtshof ), the Cour t of J ustice of the European Union ruled on the interpr e tation of Directive 98/44/ E C of the European Parl iam ent and of the Council of 6 July 1998 on the legal protection of biotechnologi cal inventions (JO L 213, p. 13). The part of the Di rective in question was particular ly the one which, tempering the principle according to which uses of human embryos for “ industrial or commercial purposes ” must be excluded from patentability , specifies that this exclusion does not affect “ inventions for therapeutic or diagnostic purposes which are applied to the human embryo and are useful to it ” . The Cour t of Justice ruled on three questions in particular : 1 ) the scope of the concept of “ human embryo ” , 2 ) the scope of ap plication of the D irective in question and 3 ) the patentability of an invention wh ose production necessitates the prior destruction of human embryos.

On the first question the Cour t of J ustice replied that the concept of “ human embryo ” was a wide one, covering “ any human ovum after fertilisation, any non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted and any non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis ” .

On the question of the scope of application of the D irective in question the Cour t of Just ice pointed out at the outset that the purpose of the D irective was not to regulate the use of human embryos in the context of scientific research . It was limited to the patentability of biotechnological inventions . The Cour t then considered that inventions involving the use of human embryo s continued to be excluded from patentability even where they purported to serv e scientific research purposes ( those purpose s being indistinguishable , where patents were concerned , from other industrial and commercial aim s), but that this did not affect inventions “ for therapeutic or diagnostic purposes which [ were ] applied to the human embryo and [ were ] useful to it” .

With regard to the third question, the Court considered that an invention had to be excluded from patentability where the “ technical teaching ” which was the subject-matter of the patent application require d the prior destruction of human embryos or their use as base material, whatever the stage at which that took place and even if the description of the technical teaching claimed did not refer to the use of human embryos .

6. A study of the le gislation governing scientific research on human embryos i n Europe [1] shows that, out of thirteen European States (Ital y , Ireland , the United Kingdom , Portugal, Spain , Germany , the Czech Republic , Switzerland , France, Greece , Lit h uani a , Finland and Sweden ), three provide for a genral ban on the use of embryo s for scientific research (Ital y , Ir e land and Germany ). In the remaining States , the le gislation allows such a practic e, particularly regarding surplus embryos ( that is, those which are created as a result of in vitro fertilisation and are ultimately not used ), subject to certain conditions ( for ex a mple, that the couple concern ed give their consent or that the research is carried out during a given life span of the embryo s).

COMPLAINTS

1. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained that Law no. 40/2004 prohibited her from donating her embryos for scientific research , thus obli gi ng her to keep them in cryo pre serv ed form until their extinction.

2. Under A rticle 10 of the Convention, the applicant also complained that the prohibition on donating the embryos i n question infringed the freedom of expression, of which the freedom of scientific research was a fundamental aspect.

3. Relying on A rticle 8 of the Convention, the applicant maintained , lastly, that the prohibition in question infringed her right to respect for her private life .

THE LAW

1. Relying on A rticle 1 of Protocol No. 1 to the Convention, the applicant complained that Law no . 40/2004 prohibited her from donating her embryo s for scientific research , thus obliging her to keep the m in cryo pre serv ed form until their ext inction. Article 1 of Protocol No. 1 provides :

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

On the basis of the material in the case file , the Cour t consider s that it is not in a position to rule on the admissiblity of this complaint and consid er s it necessary to communicate this p art of the appliction to the respondent Government , in accordance with Rul e 54 § 2 b) of the Rules of Cour t.

2. Under A rticle 10 of the Convention, the applicant also complained that the prohibition on donating the emb ryos in question infringed the freedom of expression, of which the fr e edom of scientific research was a fundamental aspect. This provision reads as follows :

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” .

While not excluding that the possible use of the embryos in question could serve the purposes of scientific research and that this may constitute a form of freedom to impart information, the Cour t points out that, as formulated by the applicant, this comp la int concerns a right vesting in the op e rat ors in the field, namely, research ers and other scientists , and not directly the applicant . As the applicant cannot claim to be a victim regarding the complaint she raises , this part of the application must therefore be rejected as incompatible ratione personae with the Convention, for the purpose s of A rticle 35 §§ 3 and 4 of the Convention.

3. Relying on A rticle 8 of the Convention, the applicant complained, lastly, that the prohibition infringed her right to respect for her private lif e. That provision reads, in so far as relevant, as follows :

“1. Everyone has the right to respect for his private ... life ... .

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court considers that, o n the basis of the material in the case file , it is not in a position to rule on the admissibility of this complaint and considers it necessary to communi cate this part of the application to the respondent Government , in accordance with Rul e 54 § 2 b) of the Rules of Court .

For these reasons, the Court , unanimously ,

Adjourns the examination of the applicant ' s complaints concerning Article 1 of Protocol No. 1 to the Convention and Article 8 of the Convention ;

Declares the remainder of the application inadmissible .

Stanley Naismith Danuté Jociené Registrar President

[1] Source: www.eurostemcell.org