CONCURRING OPINION OF JUDGE DEDOV

1. The Court has not found a violation of Article 8 of the Convention. Whilst I agree with this conclusion, I believe that this case could have been much more valuable for the Court’s case-law regarding the beginning of life.

2. The Court noted that the present case, unlike previous cases, did not concern the applicant’s choice to become a parent, and that this weakened her position. The Court analysed the competing interests, namely, the State’s wide margin of appreciation regarding the protection of embryos and the applicant’s right to self-determination.

3. The Government raised the issue of the “embryo’s potential for life” in support of the legitimacy of the aim of the interference. Such an important aim, which cannot be reduced to a question of the margin of appreciation, presumes that the embryo’s existence is a condition for a human being’s development. Since the right to life is at stake, it completely changes the judicial approach in accordance with the Court’s role in interpreting the Convention, including the positive obligation of the State to safeguard the beginning of life.

4. The principle of respect for the embryo’s right to life means that the judicial decision cannot be limited by reference to the margin of appreciation. Otherwise, the Court would also have to find no violation in the opposite situation: where an applicant opposed the donation of embryos to scientists, which may be permitted, or not prohibited, by a State.

5. In my view, the embryo’s right to life is a key criterion for reaching the right decision. I am sure that if this criterion had been applied, many previous cases, such as Evans v. the United Kingdom ([GC], no. 6339/05, ECHR 2007 ‑ I), Vo v. France ([GC], no. 53924/00, ECHR 2004 ‑ VIII) and S.H. and Others v. Austria ([GC], no. 57813/00, ECHR 2011), would have been decided in favour of the applicants, who indeed wanted to become parents and, as a result, save the embryo’s life.

6. There are plenty of sources to support this view. They have been submitted to the Court by the third parties and European institutions. These sources include, inter alia , the Communication from the European Commission on the European Citizens’ Initiative “One of us” COM(2014) 355 final (Brussels, 28 May 2014), the Grand Chamber judgment of the Court of Justice of the European Union of 18 October 2011, C-34/10 Oliver Brüstle v. Greenpeace eV , and Regulation 1291/2013 of the European Parliament and of the Council of 11 December 2013 establishing Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020). In particular, Parliamentary Assembly of the Council of Europe (PACE) Recommendation 874 (1979) on a European Charter on the Rights of the Child asserted “[t]he rights of every child to life from the moment of conception”. I regret that I cannot agree with the conclusion of the Inter-American Court of Human Rights in Artavia Murillo et al. ( in vitro fertilization) v. Costa Rica (preliminary objections, merits, reparations and costs), judgment of 28 November 2012, Series C No. 257 that “conception” occurs only after implantation of the embryo in the uterus. From the point of view of humanity, I prefer the Government’s view that, for the sake of preservation of the embryo’s potential, it is vital to implant it if another woman would like to become a mother by that method.

7. I ought also to mention PACE Resolution 1352 (2003) on human stem cell research, which is even more specific: “[t]he destruction of human beings for research purposes is against the right to life of all humans ...” (see paragraph 10 of the Resolution). Moreover, thanks to the European Citizens’ Initiative “One of Us”, the embryo’s right to life has been expressly acknowledged by millions of European citizens, and the initiative was supported by the EU governing bodies. Nevertheless, the Court is still silent on the subject. That ambiguity, which has continued from case to case, ultimately affected the applicant and her legal representatives, who were not sure which Article of the Convention should be applied in the present case, or which right should be protected: the right to private life or the property right.

8. I am not convinced that the margin of appreciation or the lack of consensus should prevent the Court from reaching such a conclusion. Since the right to life is absolute, and is one of the fundamental rights, neither the margin of appreciation nor sovereignty nor consensus is a relevant factor. A margin of appreciation is required only to determine which measures are necessary to protect a fundamental value (for example, public expenditure or a time-limit on the cryopreservation of embryos). The embryo’s life cannot be sacrificed for the purpose of inter-State competition in biomedicine.

9. The right to life is absolute, and this fundamental tenet makes it unnecessary to explain why a murderer, a disabled person, an abandoned child or an embryo should be kept alive. We do not need to evaluate their usefulness for society, but we remain hopeful regarding their potential. The embryo’s right to life cannot be called into question by the fact that, until implantation, its potential for development is something that can be maintained artificially, because any such new technology is a natural development created by human beings.

10. Even though the right to life is absolute, one might reflect on the consequences of this approach, and I would like to express some thoughts on this. Firstly, the applicant’s right to self-determination would not be affected if the embryo were donated to another woman anonymously. Secondly, research would be directed (and is already being directed) in another way with a view to reprogramming adult cells into stem cells or to recombining the DNA, if necessary, in particular to cultivate a new organ for a diseased person from his or her own stem cells.

11. The impugned decision of the Government to maintain the embryo’s life is not an extraordinary measure. The same approach is adopted in any other society which already spends public funds on supporting disabled persons or others who cannot take care of themselves. Moreover, since sperm and egg banks exist, it would not be a problem to create a bank of embryos (gametes). Ultimately, a donation – in the present case an automatic donation which some may regard as interference – is ethically acceptable if it is necessary to save a person’s life.

12. The absolute nature of the right to life reconciles any ethical, moral, religious, scientific, social or other opinions. The one single ethical issue I would recognise in the development of biomedicine is the maternity/paternity issue in the context of donorship. As explained by the Government, the only means of maintaining the embryo’s potential is to implant the embryo in the uterus of another woman (unable to conceive) who would like to have a child. In such a situation the applicant’s status as a donor should be recognised automatically. The legal status of donor resolves ethical problems, as motherhood, in terms of family relations, differs from the mere similarity of genetic material. In S.H. and Others v. Austria , cited above, the Court found no violation of the applicants’ rights by the respondent State as a result of the prohibition of donations of reproductive material from third persons other than either of the parents of the future child. In the opposite situation, such as in the present case, the Court has again found no violation. This has happened because the relevant principles (right to life) were not applied by the Court, and the S.H. and Others v. Austria case was therefore unfortunate. The present judgment makes the outcome of future cases relating to biomedicine unpredictable.

13. The role of the Court is to determine fundamental values and prevailing interests in order to examine each particular case on its merits. Accordingly, the Court cannot but conclude that the right to life as one of the fundamental rights and freedoms is at stake in the present case.

14. Since new biotechnology objectively expands our perception of the forms and conditions of human existence, I am not aware of any objective obstacles to the legal recognition of this achievement, as soon as possible, as it is well known that any delay in such recognition at national and international level is potentially life-threatening and arbitrary.